The 

DIVORCE 

PROBLEM 


IN  THE’ 

United  States 


BY 


PATRICK  L.  CRAYTON,  S.T.L. 


1904: 

THOMAS  J.  FLYNN  & CO. 
PUBLISHERS 

62  AND  64  ESSEX  STREET 

Boston,  Mass. 


b&Wm  p?: RAHT 

cm&WWE  Mass*' 


THE 


Divorce  Problem 

in 

THE  UNITED  STATES 


PATRICK  L.  CRAYTON,  S.  T.  L. 


1904 

THOMAS  J.  FLYNN  & CO. 
Publishers 

62  and  64  Essex  Street 
Eoston,  Mass. 


Imprimatur : 

* JOANNES  JOSEPHUS, 

Archiepiscopus  Bostoniensis. 

\ 


Nihil  Obstat : 

EDMUND  T.  SHANAHAN,  D.  D., 

Censor  Deputatus. 


Copyrighted,  1904. 


PRINTED  BY 

Washington  Press, 
Boston,  Mass. 


PREFACE. 


These  pages  are  written-  to  illustrate  the  fact  that 
divorce,  with  its  present  legislation  in  the  United  States,  is 
an  appalling  menace  to  social  order  and  morality;  to  demon- 
strate that  the  reforms  ordinarily  proposed  do  not  meet  the 
exigencies  of  the  case;  and  to  suggest  the  remedy  for  the 
existing  disastrous  condition  of  affairs.  They  are  addressed 
to  “the  general  reader”  in  whom,  it  is  thought,  the  import- 
ance of  the  subject  is  well  calculated  to  awaken  a more  than 
passing  interest.  They  are  hardly  intended  for  the  special- 
ist: there  is  no  discussion  of  the  moot-points  of  law  so 
pleasing  to  the  lawyer;  nothing  new  and,  perhaps,  hut  little 
of  interest  to  the  statistician;  no  exhaustive  theological 
inquiry.  Some  facts  of  the  law  and  of  our  practice  are  pre- 
sented; a few  statistics,  confirmatory  of  stated  views,  are 
inserted;  the  doctrinal  tenets  of  certain  religious  bodies  on 
this  subject  are  outlined. 

To  those  kind  friends  who  have  in  word  and  deed 
encouraged  the  presenting  of  these  pages  to  the  public,  the 
writer  desires  to  express  his  gratitude. 

Gloucester,  Mass. 

Feast  of  St.  Anne,  1904. 


3 


THE  DIVORCE  PROBLEM  IN  THE 
UNITED  STATES. 


Occasional  rumors  to  the  effect  that  President  Roose- 
velt intends  recommending  that  Congress  provide  means  for 
making  an  exhaustive  inquiry  into  the  question  of  divorce 
in  this  country  with  a view  to  enacting  a Federal  divorce 
law;  hills,  presented  to  Congress  in  recent  years,  seeking  to 
advance  some  reform  in  this  matter;  the  hill  prepared  hy 
a committee  of  The  State  Bar  Association  of  Ohio,  and  pre- 
sented to  the  Legislature  of  that  State,  looking  for  the 
regulation  of  judicial  procedure  in  matters  of  divorce;  the 
growing  agitation  in  many  spheres  of  secular  and  ecclesiasti- 
cal activity  manifested  a few  months  ago  in  the  recommend- 
ation that  divorcees  and  their  consorts  he  ostracized  from 
society,  and  more  recently  in  the  meeting,  in  New  York 
City,  of  eminent  Protestant  ministers  and  laymen,  repre- 
sentatives of  the  Episcopal,  Methodist,  Presbyterian,  Re- 
formed, Evangelical,  Lutheran,  Baptist,  Congregational, 
Universalist,  Unitarian,  and  Reformed  Presbyterian 
churches  “to  decide  upon  some  final  method  involving  a 
comity  of  relation  and  uniform  practice  to  treat  the  great 
evil  of  divorce  in  this  country,  so  that  persons  who  were 
married  under  the  rites  of  one  church  cannot,  after  securing 
divorces,  re-marry  under  the  rites  of  some  other  Protestant 
Church;”* — all  seem  to  indicate  that  the  question  of 
divorce  in  this  country  is  on  the  verge  of  one  of  its  periodi- 
cal discussions.  Though  it  savors  of  the  impossible  to 
attempt  giving  expression  to  anything  new  or  original  on  so 
threadbare  a topic,  yet  an  exposition  of  the  more  important 
aspects  of  the  problem  in  our  own  country  may  he,  at  this 
time,  not  an  unwelcome  contribution  to  the  already  volu- 
minous literature  of  this  ever-recurring  theme. 

* Rt.  Rev.  David  H.  Greer,  Bishop-Coadjutor  of  the  Episcopal  Archdiocese  of  New 

York. 


5 


The  divorce  question  is,  indeed,  one  of  the  most  serious 
problems  presented  to  us.  It  demands  its  answer  more  and 
more  urgently  every  day,  and  nowhere  more  imperatively 
than  here  in  the  United  States.  Divorce  is  one  of  the 
crying  evils  of  our  country,  and  has  been  greatly  aggra- 
vated in  recent  years  by  the  operations  of  “the  divorce 
mills”  in  New  York  City,  Buffalo,  and  elsewhere.  It  seems 
destined  to  bring  upon  the  country  disaster  far  greater  than 
the  bitterest  political  strifes,  and  it  is  no  exaggeration  to 
state  that  of  the  many  evils  now  arrayed  against  society 
none  is  greater  than  that  threatened  by  the  facility  and  the 
frequency  with  which  divorces  are  obtained.  This  bane  of 
our  day  has  already  cast  a blight  on  our  morals;  it  has 
shaken  our  best  institutions,  infested  all  classes  of  society, 
and  its  demoralizing  work  is  not  yet  consummated.  It  is 
not  alone  our  congested  cities  that  are  infected  with  this 
moral  cancer,  hut  it  has  spread  to  the  quiet  of  hillside  and 
hamlet,  and  no  part  of  the  land  is  a stranger  to  its  presence. 
It  continues  to  grow  amongst  us  day  by  day;  it  strikes 
deeper  root  on  all  sides.  Its  hideous  aspect  is  ever  becoming 
more  and  more  familiar  to  us.  Many  even  smile  over  its 
attendant  disclosures  of  depravity  as  pleasant  tid-bits  of 
scandal  with  which  the  morning  papers  agreeably  enliven 
the  breakfast  table,  while  too  few  reflect  upon  the  alarming 
magnitude  of  the  danger  with  which  it  is  fraught.  Indeed, 
so  dulled  has  the  public  conscience  become  in  this  respect, 
so  slow  its  apprehension  of  this  mighty  evil  pressing  upon 
us  that  hut  too  rarely  has  a warning  voice  been  raised 
against  it. 

The  interest  which  should,  and  among  thoughtful  men 
does,  attach  to  the  divorce  problem  in  the  United  States  is, 
indeed,  great.  The  late  Mr.  Gladstone,  in  reference  to  this 
matter,  wrote : “I  incline  to  think  that  the  future  of 
America  is  of  greater  importance  to  Christendom  at  large 
than  that  of  any  other  country;  that  that  future,  in  its 
highest  features,  vitally  depends  upon  the  incident  of  mar- 
riage; and  that  no  other  country  has  ever  been  so  directly 
challenged  as  America  now  is  to  choose  its  course  defi- 
nitively with  reference  to  one,  if  not  more  than  one,  of  the 


6 


very  greatest  of  those  incidents.”  (The  Question  of  Divorce, 
North  American  Review,  Dec.  1889.)  And  from  time  to 
time,  in  the  press  and  otherwise,  the  attention  of  the  public 
has  been  particularly  directed  to  the  abuses  of  divorce,  and 
to  the  facilities  afforded  by  American  law — and  by  the 
looseness  of  its  administration — for  the  disruption  of  the 
family  tie.  The  United  States  may  truly  claim  a sort  of 
disgraceful  pre-eminence  in  this  matter  of  divorce,  since 
so  many  of  its  States  are  so  lavish  in  the  accumulation  of 
causes  for  which  absolute  separation  may  he  procured,  and 
that  with  consequent  freedom  to  enter  legally  into  new  ties. 

It  is  not  the  purpose  of  these  pages  to  enlarge  upon  the 
evils  of  the  American  system  of  divorce.  These  evils  are 
notorious.  In  1887,  an  appropriation  was  authorized  by 
Congress  providing  means  “to  enable  the  Commissioner  of 
Labor  to  collect  and  report  to  Congress  the  statistics  of 
and  relating  to  marriage  and  divorce  in  the  several  States 
and  Territories,  and  in  the  District  of  Columbia.”  This 
work,  notwithstanding  the  many  difficulties  necessarily  en- 
countered, was  well  accomplished,  and  a voluminous  report, 
prepared  under  the  supervision  of  the  Hon.  Carroll  D. 
Wright,  was  transmitted  to  Congress  and  printed. 

Even  a superficial  examination  of  this  report  will  ac- 
quaint one  with  the  magnitude  of  the  proportion  to  which 
the  business  of  divorce  has  attained  in  this  country.  Col. 
Wright’s  report  covers  a period  of  twenty  years,  from  1867 
to  1886  inclusive.  It  appears  that  during  this  entire  period 
there  were  granted  in  the  United  States  (160  counties,  or 
6 per  cent,  of  the  counties  not  included)  328,716  divorces. 
The  rate  varies  considerably  in  the  different  States.  Illinois 
heads  the  list  with  36,072.  Ohio  is  second  with  26,327. 
Indiana  has  25,193.  Michigan  is  next  with  18,433.  Some 
of  the  smaller  States  return  proportionally  large  numbers. 
Rhode  Island  offers  4,462;  New  Hampshire  returns  4,979; 
Connecticut,  8,542.  But  these  numbers  are  not  to  be 
equalized  through  the  years  covered  by  the  report,  because 
it  is  shown  that  during  the  entire  period  divorce  has  been 
increasing  at  a rate  more  than  twice  as  great  as  that  of 
the  increase  of  the  population.  Each  year,  with  the  sole 


7 


1 


exception  of  the  year  1884,  witnessed  a larger  number  of 
divorces  than  any  preceding  year.*  From  9,931  divorces 
granted  in  the  United  States  in  1867  the  total  reached 
25,535  for  the  year  1886;  an  increase  of  nearly  157  per  cent, 
in  twenty  years,  while  the  population  increased  but  60  per 
cent,  in  the  same  period. 

Changes  in  legislation,  either  an  extension  of  the 
privileges  of  divorce  laws,  facilitating  the  securing  of  de- 
crees, or  an  addition  of  causes  to  those  already  existing,  and 
especially  the  changed  social  and  economic  condition  of 
woman,  may  account,  in  some  measure,  for  the  marked  in- 
crease in  the  number  of  divorces  granted  in  1886  compared 
to  the  number  granted  in  1867.  However,  a very  satisfac- 
tory method  of  establishing  a comparison  which  will  show 
a steady  increase  of  divorces  during  those  twenty  years  is 
to  be  found  in  using  periods,  for  instance,  the  quinquennial 
and  decennial  periods  into  which  the  twenty-year  period 
naturally  divides  itself.  In  the  first  quinquennial  or  five- 
year  period  53,574  decrees  of  divorce  were  granted  in  the 
whole  country;  68,547  in  the  second  period;  89,284  in  the 
third;  117,311  in  the  fourth.  In  other  words,  there  is  ever 
an  increase,  and  no  instance  of  a decrease,  for  in  the  country 
as  a whole  the  number  of  divorces  granted  in  the  second  of 
these  periods  is  27.9  per  cent,  more  than  in  the  first,  the 
number  granted  in  the  third  period  is  30.3  per  cent,  more 
than  in  the  second,  the  number  granted  in  the  fourth 
period  is  31.4  per  cent,  more  than  in  the  third,  and  the 
total  number  of  divorces  granted  in  this  fourth  five-year 
period  (1882-1886)  is  119  per  cent,  more  than  the  total 
number  granted  in  the  first  five-year  period  (1867-1871). 
Grouped  into  decennial  or  ten-year  periods,  the  first  of 
these  periods  has  122,121  divorces;  the  second,  206,595.  In 
other  words,  the  total  number  of  divorces  granted  in  the 
whole  country  during  this  latter  period  (1877-1886)  is  69.2 
per  cent,  more  than  the  number  granted  in  the  first  decen- 
nal  period  (1867-1876).** 

* “ Marriage  and  Divorce.” — Carroll  D.  Wright,  pp.  442-443. 

**  “Marriage  and  Divorce.” — Wright,  pp.  141-142. 

“ Marriage  and  Divorce.” — D.  Convers,  p.  169. 


8 


This  brief  statement  of  the  leading  facts  gathered  from 
official  statistics — facts  which  acquire  additional  signifi- 
cance when  pursued  into  detail — is  enough  to  show  that 
there  has  been  a steady  increase  in  the  number  of  divorces 
granted  in  those  years  covered  by  Col.  Wright's  report. 
Nor  is  there  much  reason  to  suppose  that  the  rate  of  in- 
crease which  had  prevailed  during  those  twenty  years  has 
been  in  any  degree  checked  in  the  years  that  have  followed. 
On  the  contrary,  it  is  notorious  that  the  business  of  divorce 
has  been,  and  is,  everywhere  accelerating,  and  it  is  probable 
that  the  ratio  of  increase  is  also  steadily  rising.  This  is 
the  case  in  Massachusetts.  The  statistics  of  that  State 
show  that  in  the  twenty-year  period  (1867-1886)  9,853 
divorces  were  granted,  a yearly  average  of  less  than  500. 
But  in  1902  the  whole  number  of  divorces  granted  was 
1,480,  which  is  104  more  than  the  number  granted  in  1901, 
and  322  more  than  the  number  granted  in  1900;  and  it 
further  appears  that  the  total  number  of  divorces  granted 
in  1902  is  greater  by  278  than  the  average  number  granted 
in  the  ten-year  period  of  1893-1902,  and  greater  by  537  than 
the  average  number  granted  in  the  twenty-year  period  of 
1883-1902.*  The  report  of  the  Indiana  Department  of 
Statistics  shows  that  there  was  one  divorce  for  about  every 
six  marriages  in  that  State  for  the  year  ending  October 
31,  1900.  In  other  words,  there  were  27,671  marriages  to 
4,699  decrees  of  divorce.  The  court  officials  estimate  that 
not  less  than  2,000  other  suits  for  divorce  were  brought 
which  were  either  withdrawn,  or  in  which  the  decree  was 
denied  by  the  court.  This  State  has  shown  some  improve- 
ment of  late,  for  in  1901  there  were  3,585  divorces  granted, 
and  3,552  divorces  in  1902.  In  Ohio  things  have  been  get- 
ting worse.  In  1900,  there  were  granted  2,306  divorces,  or 
one  divorce  to  14.5  marriages,  but  in  1902  there  were  4,276 
divorces,  or  one  to  8.8  marriages.  In  Maine  matters  are 
still  worse,  for  in  1902  there  were  905  divorces,  or  about  one 
divorce  to  every  six  marriages. 


* nuD!lber  °*  bbe*s  which  decrees  nisi  were  entered  during  the  year  1902  is 
hi  li  , ' Sixfcy-first  Report  of  Births,  Marriages  and  Deaths  in  Massachusetts,”  pp.  96- 

111  ; lDa—loo. 


9 


Owing  to  the  fact  that  not  all  of  our  States  publish 
annually  the  number  of  divorces  granted  within  their  re- 
spective jurisdictions,  it  is  extremely  difficult  to  state 
exactly  the  number  of  divorces  granted  in  the  whole  coun- 
try in  any  one  year,  though  from  time  to  time  this  has  been 
attempted.  The  calculation  of  the  Rev.  B.  J.  Otten,  S.  J., 
is  worthy  of  special  notice.  “In  the  monthly  Bulletin  of  the 
Department  of  Labor  for  September,  1902,  are  given  the 
divorces  granted  in  sixty  cities  in  all  parts  of  the  United 
States,  the  total  number  of  these  divorces  granted  in  1901 
being  6,998.  The  population  of  these  cities  was  at  the 
time  8,146,833,  or  a little  less  than  one-ninth  that  of  the 
whole  country.  Hence,  multiplying  6,998  by  nine  and  one- 
tenth,  we  obtain  for  the  whole  country  63,681  divorces.  . . 

Yet  it  may  be  objected  that  it  is  not  fair  to  take  only  cities, 
because  divorces  are  apt  to  be  more  numerous  in  cities  than 
in  the  country.  To  remove  this  objection  I have  also  gath- 
ered the  divorces  granted  in  sixty  counties,  the  total  num- 
ber of  which  was  found  to  be  11,120.  The  population  of 
these  sixty  counties  was  at  the  time  13,359,714,  or  two- 
elevenths  of  the  population  of  the  whole  country.  There- 
fore, multiplying  11,420  by  eleven  halves,  we  again  obtain 
for  the  whole  country  61,160.  Consequently,  the  lowest 
limit  we  can  assign  to  the  number  of  divorces  granted  in 
1901  is  61,160.  This,  at  an  increase  of  6 per  cent,  a year, 
as  calculated  above,  gives  for  1903  the  respectable  number 
of  68,499.  Hence  our  courts  broke  up  in  1903  nearly  sev- 
enty thousand  homes — a number  sufficiently  large  to  con- 
stitute a fair-sized  city.”*  So  summarily  it  is  to  be  said 
that  the  divorce  evil  is  as  a tide,  it  “is  rising  all  over  the 
world,  but  nowhere  is  it  so  high,  nowhere  does  it  rise  so 
fast  as  in  these  United  States.”  (W.  F.  Wilcox.) 

But  before  touching  more  directly  the  other  elements 
of  the  divorce  problem  in  this  country,  it  is  well  that  our 
readers’  attention  be  directed  to  one  fact  which  has  an 
indisputable  bearing  on  the  question.  Many  and  varied 
are  the  religious  denominations  in  our  midst,  and  it  is 

* “The  National  Evil  of  Divorce,”  by  Rev.  B.  J.  Otten,  S.  J.,  in  The  Messenger  for 
April,  1904,  p.  376. 


10 


patent  that  religious  sentiment  and  teaching  has  its  influ- 
ence on  divorce,*  for  to  marriage,  the  antecedent  of  divorce, 
the  people  of  the  United  States — of  whatever  professed  be- 
lief— attach  some  religious  characteristics.  Therefore  it  is 
proper  that  something  be  inserted  regarding  religious  teach- 
ing and  practice  in  this  matter.  And  since  divorce  is  a 
consequent  of  marriage,  as  introductory  to  the  exposition 
of  the  doctrinal  tenets  of  the  various  religious  denomina- 
tions in  our  country  whose  influence  on  divorce  legislation 
is  undeniable,  the  nature  and  institution  of  marriage  itself 
is  outlined. 

Marriage  is  the  germ  of  human  society;  the  seed  which 
has  developed  into  the  family,  the  tribe,  the  nation  in  one 
line;  the  town,  the  city,  the  empire  in  another.  Marriage 
marks  the  beginning  of  mam’s  social  development  ; it  is  the 
foundation  of  his  social  life;  it  is  the  basis  of  human  soci- 
ety, and  our  existing  civilization  unquestionably  rests  upon 
marriage  as  Christianity  has  shaped  it.  For  centuries,  while 
that  order  of  things  which  we  call  Christendom  endured, 
the  Catholic  Church  was  the  great  ethical  teacher  of  the 
developing  civilization.  The  burden  of  her  teaching  was 
duty — the  whole  duty  of  man — and  nowhere  was  that  teach- 
ing clearer,  more  imperative,  and  productive  of  greater 
results  than  in  her  doctrine  concerning  matrimony.  The 
Church,  accepting  in  their  entirety,  the  original  attributes 
of  marriage,  brought  to  view  the  sacrament  enfolding  and 
consecrating  them.  She  taught  that  marriage  was  insti- 
tuted in  the  beginning  by  the  Creator  as  a union  between 
the  first  man  and  the  first  woman,  made  by  a bond  which 
was  not  to  be  broken  except  by  the  ending  of  the  natural 
life  to  which  it  belonged.  It  began  in  Eden  in  that  state 
of  original  justice  in  which  the  first  human  pair  was  con- 
stituted, but  like  other  human  things,  it  was  subject  to  the 
consequences  of  the  fall,  and  by  degrees  its  original  attrib- 
utes of  unity  and  indissolubility  were  impaired  by  the  intro- 
duction of  polygamy  and  divorce.  These  departures  from 
the  pure  idea  of  marriage,  due  to  the  “hardness  of  heart” 

* “ Marriage  and  Divorce,”  — Wright,  p 122. 

“ Marriage,  Divorce  and  Separation,”  — J.  P.  Bishop,  Nos.  92-95. 


11 


of  the  people,  were  tolerated  under  the  primitive  law  given 
to  the  patriarchs  and  to  Moses,  polygamy  being  tacitly 
allowed,  and  divorce  expressly  regulated  by  that  law.*  This 
Mosaic  dispensation  was  imperfect,  provisional  and  partial, 
hnt  with  the  coming  of  Christ  upon  earth,  “That  which  was 
in  part  was  done  away,  that  which  was  perfect,”  had  come. 
Christ,  in  the  fulness  of  His  power,  promulgated  the  perfect 
moral  law,  and  enacted  with  a new  and  more  stringent 
obligation  the  laws  of  unity  and  indissolubility  of  marriage. 
He  raised  marriage  to  the  dignity  of  a sacrament  of  the 
New  Law,  and  He  set  upon  its  indissolubility  the  seal  of  His 
sanction,  “What  God  hath  joined  together,  let  no  man  put 
asunder.”  This  grafting  of  the  natural  properties  of  mar- 
riage— unity  and  indissolubility — upon  a divine  sacrament 
was  the  doctrine  which  Christ  entrusted  to  His  Church.  To 
her  He  gave  the  office  of  preserving  intact  the  natural  and 
divine  law  in  this  matter  and  the  authoritative  promulga- 
tion of  the  same. 

But  it  was  one  thing  for  the  Church  to  set  forth  a 
doctrine  in  theory  and  quite  another  thing  to  carry  it  out 
in  practice.  And  it  would  be  impossible  that  the  Church — 
“the  knight-errant  of  the  moral  world,” — should  have  failed 
to  break  a lance  through  succeeding  centuries  for  the  integ- 
rity of  the  marriage  bond.  She  was  at  once  brought  into 
conflict  with  existing  civilization,  and  when  public  opinion, 
universal  custom,  depraved  nature  and  its  powerful  passions 
rose  up  in  their  might  against  her,  she  had  to  guard  and 
protect  the  unity  and  indissolubility  of  marriage.  For  nine- 
teen centuries  she  has  maintained  the  sacramental  charac- 
ter of  matrimony,  its  unity  and  indissolubility,  in  the  face  of 
Boman  despotism,  under  crushing  persecution,  in  the  face 
of  untamed  barbarian  conquerors,  amid  the  ruin  of  civil 
institutions,  the  license  and  anarch}?-  of  violent  change.  And 
in  our  own  age,  before  a spirit  of  self-will,  which  assumes 
the  guise  of  liberty  and  sweeps  over  modern  nations  as  the 
flame  over  the  prairie,  the  Church  still  maintains  the  self- 
same law  of  marriage  as  the  last  rampart  of  the  family  and 


* Deut.  XXIV.,  lssq.  Matt.  V.,  31 ; XIX.,  7 ; Mark  X.,  4. 


12 


of  society  against  their  invaders.  Marriage  in  the  mind  of 
the  Church  is,  as  it  ever  was,  the  most  inviolable  and  irrevo- 
cable of  all  contracts.  Every  human  contract  may  be  law- 
fully dissolved,  but,  by  the  law  of  God,  the  bond  uniting 
husband  and  wife  can  be  broken  only  by  death.  The  sword 
of  earthly  justice  cannot  sever  the  nuptial  knot  which  the 
Lord  has  tied,  for,  “What  God  hath  joined  together  let  no 
man  put  asunder.” 

For  her  own  subjects  the  Catholic  Church  has  a full 
code  of  law  on  marriage  and  divorce.  But  like  any  other 
code  of  law  which  amounts  to  anything,  it  is  not  thoroughly 
understood  by  any  except  those  who  study  it  professionally. 
Summarily,  her  law  may  be  stated  as  follows : — 

(a) .  A valid  Christian  marriage,  (i.  e.  of  baptized  per- 
sons) not  consummated,  (ratum  et  non  consummatum)  may 
be  dissolved  by  the  spiritual  death  of  one  of  the  parties  who 
takes  the  solemn  vows  of  a religious  order* *;  or  by  dispen- 
sation from  the  Pope. 

(b) .  A marriage  between  unbelievers  (i.  e.  unbaptized 
persons)  becomes  dissolved  if  one  of  the  parties  becomes  a 
Catholic  and  contracts  a valid  Christian  marriage,  pro- 
vided, however,  that  the  unconverted  unbelieving  spouse 
will  not  continue  the  marriage  relation  with  the  other,  or 
will  not  continue  it  amicably  (pacifice) ; without  reviling  the 
Creator  (sine  contumelia  Creatoris) ; or  without  the  spiritual 
disadvantage  of  the  converted  and  believing  spouse  (damno 
spirituali  fidelis). 

(c) .  Separation — a mensa  et  toro — either  perpetual  or 
temporal  (equivalent  to  a limited  divorce  as  allowed  in 
American  law)  is  permitted  in  the  case  of  a valid  and  con- 
summated Christian  marriage  for  most  of  the  causes  for 
which,  in  civil  legislation,  absolute  divorce,  i.  e.,  divorce 
a vinculo  matrimonii,  is  granted. 

(d) .  The  Catholic  Church  denies  all  power  to  any  tri- 
bunal, secular  or  ecclesiastical,  to  grant  divorce  “a  vinculo 
matrimonii,”  for  any  cause  whatsoever,  in  the  case  of  mar- 
riage validly  contracted  and  consummated  (ratum  et  con- 
summatum) according  to  the  institution  of  Christ.  It  is. 


* Council  of  Trent,  sess.  XXIV.,  can.  6. 

* 13 


therefore,  one  of  the  cardinal  doctrines  of  the  Catholic 
Church  that  the  marriage  of  Christians,  i.  e.,  of  baptized 
persons,  validly  ratified  and  consummated  is  absolutely 
indissoluble.  Consequently,  there  can  he  no  legal  and  valid 
divorce  a vinculo  of  the  parties  to  such  a marriage.  Divorce 
in  the  modern  sense,  i.  e.,  a vinculo  matrimonii,  has  no  place 
in  Catholic  doctrine  or  practice. 

Moreover,  this  Church  proclaims  and  establishes  a con- 
siderable number  of  impediments  invalidating  marriage, 
which  impediments  may,  for  the  most  part,  he  removed 
either  in  general  or  in  the  particular  case  by  the  supreme 
authority  in  the  Church;  and  this  power  is  often  delegated 
more  or  less  entirely  to  bishops  and  other  subordinates,  and 
thus  no  difficulty  need  beset  any  conscientious  Catholic  con- 
templating matrimony.  Occasionally  he  may  have  to  con- 
sult a clergyman  beforehand  with  regard  to  this  or  that 
impediment,  as  any  man  of  sense  would  consult  a lawyer 
before  taking  an  important  step  of  which  he  did  not  fully 
know  the  legal  bearing.* 

This  condition  of  affairs  prevailed  for  many  centuries, 
and  so  long  as  the  Church  was  permitted  to  exercise  full 
control  of  matters  relating  to  marriage  all  moved  smoothly 
on ; for  although  abuses  appeared  at  times,  they  were  known 
to  be  such  and  opposed.  However,  a lamentable  change 
was  ushered  in  by  the  dawn  of  the  Reformation.  At  that 
time  the  sacramental  character  of  marriage  was  rudely  as- 
sailed and  persistently  denied.  It  was  sought  to  degrade 
matrimony  to  a mere  civil  contract,  and  to  place  it  under 
the  sole  guardianship  of  the  State.  In  all  Protestant  coun- 
tries and  communions  this  attempt  succeeded.  And  it  is  to 
the  eternal  infamy  of  the  memory  of  the  founder  of  the 
Reformation,  Martin  Luther,  and  of  his  associates,  that  they 
laid  the  foundations  of,  and  made  possible,  the  present  de- 
testable system  of  divorce  by  deliberately  sanctioning  the 
open  bigamy  of  the  Landgrave  of  Hesse  who  appealed  to 
them,  as  expositors  of  the  law  of  Christ,  for  permission  to 
have  two  wives.** 

* S.  Thom.  Supp.  q.  61-67  ; Sanchez,  1 II.,  disp.  18-23;  VII.,  disp.  74;  X.,  disp.  1 ; 
Carriere,  n.  213  sq.,  228  sq.,  302  sq  ; Perrone,  1.  II.,  sect.  1,  c.  7,  a.  2;  1.  Ill  sect.  2, 
c.  1-4  ; c 6,  a.  1 ; De  Augustinis,  a.  8;  th.  10.  Palmier!,  th.  16-27. 

**  “History  of  the  Reformation,”  vol.  1,  Spalding. 


14 


Now  of  the  numerous  religious  denominations  which 
have  evolved  from  the  Reformation,  or  come  into  being 
since  that  time,  and  which  exist  in  our  country  today,  and 
of  their  doctrinal  tenets  concerning  marriage  and  divorce, 
it  is,  to  some  extent,  due  the  Protestant  Episcopal  Church 
to  state  that  no  other  Protestant  communion  in  this  country 
has  stood  more  firmly  for  the  stricter  view  of  marriage  and 
divorce.  The  doctrine  and  law  of  this  Church  on  the  sub- 
ject of  divorce  is  contained  in  Canon  13,  title  II.  of  the 
“Digest  of  Canons”  of  1887.  Nowhere  has  this  Church 
defined  marriage.  Negatively  it  is  affirmed  (art.  XXV.) 
that  “matrimony  is  not  to  be  counted  for  a sacrament  of 
the  Gospel.”  This  seems  to  reduce  marriage  to  a civil  con- 
tract, and  accordingly  the  first  rubric  in  the  “Form  of  Sol- 
emnization of  Matrimony”  directs,  on  the  ground  of  differ- 
ences of  law  in  the  various  States,  that,  “the  minister  is 
left  to  the  directions  of  those  laws  in  everything  that  re- 
gards the  civil  contract,  between  the  parties.”  Laws  de- 
termining what  persons  shall  be  capable  of  contracting 
marriage  would  seem  to  be  included  in  “everything  that  re- 
gards the  civil  contract,”  and,  as  a matter  of  fact,  the 
Protestant  Episcopal  Church  has  never,  by  canon  or  express 
legislation,  published  a code  of  impediments.  The  present 
canon  of  this  Church  allows  the  complete  validity  of  divorce 
a vinculo  in  the  case  of  adultery,  and  the  right  of  re-mar- 
riage to  the  innocent  party.  But  the  Church  has  not  deter- 
mined in  what  manner  either  the  grounds  of  the  divorce,  or 
the  “innocence”  of  either  party  is  to  be  ascertained. 

The  law  of  this  Church  is  by  no  means  identical  with 
the  opinion  of  either  the  entire  clergy  or  the  laity.  Many 
Episcopalians  are  of  the  opinion  that  in  the  authoritative 
teaching  of  their  Church  the  existing  law  is  far  too  lax,  or, 
at  least,  the  whole  doctrine  of  marriage  is  too  inadequately 
dealt  with.  This  sentiment  has  been  active  for  several 
years,  among  the  High  Church  party  more  particularly,  and 
it  showed  itself  to  be  so  powerful  at  a General  Conference 
held  in  Washington,  October,  1898,  that  its  efforts  for 
reform  in  this  matter  were  defeated  by  only  a small  major- 
ity. 


15 


At  that  Conference  the  whole  subject  of  marriage  and 
divorce  received  much  attention.  A committee  of  twelve 
was  appointed  for  the  purpose  of  taking  the  matter  under 
more  special  consideration  and  of  making  such  recommenda- 
tions to  the  next  General  Conference  as  would  seem  to  be 
warranted.  This  committe  met  the  following  year.  It 
failed,  however,  to  reach  any  definite  agreement  relative  to 
a change  in  the  existing  canon.  On  November  14,  1900, 
this  committee  assembled  a second  time  and  definite  changes 
were  agreed  upon.  By  a canon,  unanimously  adopted  by 
this  committee,  re-marriage  of  divorced  persons  by  clergy- 
men of  the  Protestant  Episcopal  Church  was  absolutely 
forbidden.  Ministers  of  this  Church  were  positively  for- 
bidden to  unite  in  matrimony  either  the  guilty  or  innocent 
party  to  a divorce  while  the  former  husband  or  wife  lives. 
This  canon,  however,  did  not  declare  the  marriage  of  such 
innocent  parties,  if  contracted  under  civil  sanction,  to  be 
unlawful,  and  it  did  not  declare  the  parties  thereto  to  be 
subjected  to  any  discipline  for  this  cause.  The  canon  pre- 
scribed that  it  is  hereby  enacted  that,  “No  minister  shall 
solemnize  a marriage  between  any  two  persons  unless,  nor 
until,  by  inquiry,  he  shall  have  satisfied  himself  that  neither 
person  has  been,  nor  is,  the  husband  or  wife  of  any  other 
living;  unless  the  former  marriage  was  annulled,  by  a de- 
cree of  some  civil  court  of  competent  jurisdiction,  for  cause 
existing  before  such  former  marriage.”  (Canon  2,  sect.  IY.) 
In  another  canon,  adopted  without  a dissenting  voice,  a 
divorced  person  who  re-marries  during  the  lifetime  of  the 
former  husband  or  wife  was  excluded  from  the  sacraments, 
except  when  at  the  point  of  death,  or  when  penitent  and 
separated  from  the  person  whom  the  husband  or  wife  sub- 
sequently married.  This  canon,  however,  applied  only  to 
the  offending  party  to  a divorce,  practically  tending  to  ex- 
communicate him  or  her  so  far  as  church  membership  goes; 
it  did  not  apply  to  the  innocent  party  when  a divorce  is 
obtained  for  the  cause  of  adultery.* 


* “Literary  Digest,"  Dec.  15,  1900,  p.  738. 


16 


These  canons  indicate  a reaction  in  the  “public  opinion” 
of  the  Episcopalian  body  against  the  freedom  of  divorce. 
The  unanimous  action  of  the  committee  was  wholesome  and 
inspiring,  and  was  a step  in  the  right  direction,  if  taken 
somewhat  late  in  the  day.  Were  the  canons  adopted  by  the 
General  Conference  it  would  be,  perhaps,  as  far  as  the  Epis- 
copal Church  will  ever  go  in  this  matter  until  it  is  ready  to 
join  with  the  Catholic  Church  in  definitively  holding  mar- 
riage to  be  a sacrament  and  indissoluble.  And,  as  a matter 
of  fact,  the  sentiment  in  favor  of  the  stricter  view  of  mar- 
riage and  divorce  has  become  so  pronounced  among  so 
many  of  the  communicants  of  this  Church  that  the  advisa- 
bility of  forbidding  divorce  altogether  is  a matter  which 
will  come  up  for  discussion  before  the  House  of  Bishops  at 
the  General  Conference  to  be  held  in  Boston  this  year. 

For  the  other  Protestant  sects  of  our  country,  suffice  it 
to  state  that  they  have  never  professed  the  doctrine  of  the 
indissolubility  of  marriage.  All  permit  divorce  for  adul- 
tery, and  likewise  sanction  it  for  other  causes.  But  the 
inter-church  conference  above  referred  to,  while  not  limit- 
ing the  causes  of  divorce,  seems  destined  to  be  productive 
of  some  good  results.  The  General  Assembly  of  the  Presby- 
terian Church  of  the  United  States  held  at  Buffalo,  N.  Y., 
May,  1904,  by  a two-thirds  vote,  passed  the  following  reso- 
lution: “Recognizing  the  comity  which  should  exist  between 
the  denominations  of  the  inter-church  conference,  and  be- 
lieving that  it  would  be  desirable  and  tend  to  the  increase 
of  a spirit  of  Christian  unity,  we  earnestly  advise  all  the 
ministers  under  the  care  and  authority  of  this  General 
Assembly  to  refuse  to  unite  in  marriage  any  person  or  per- 
sons whose  marriage  such  ministers  have  good  reason  to 
believe  is  forbidden  by  the  laws  of  the  Church  in  which 
such  person  or  persons  seeking  to  be  married  may  hold 
membership.”  Similar  resolutions  are  anticipated  on  the 
part  of  the  other  churches  interested  in  this  movement 
against  divorce. 

There  is,  however,  in  the  United  States,  one  religious 
body  whose  singular  doctrine  has,  of  late,  attracted  much 
attention  because  of  revelations  made  at  the  inquiry,  by  a 


17 


Committee  of  the  United  States  Senate  to  determine  the 
right  of  the  Hon.  Reed  Smoot,  Senator-elect  from  Utah,  to 
retain  his  seat  in  that  body. 

The  Mormon  Church,  or  “The  Church  of  Jesus  Christ 
of  Latter-Day  Saints”  was  organized  in  Hew  York  in  1830, 
but  soon  transferred  to  Ohio,  and  thence  to  Illinois.  Later, 
its  adherents,  under  Brigham  Young,  emigrated  to  Utah, 
and,  in  1847,  established  the  seat  of  the  Church  at  Salt 
Lake  City,  where  it  remains  today.  This  sect  recognizes 
two  kinds  of  marriage,  namely,  temporal  and  spiritual;  the 
former  joining  the  parties  thereto  for  this  world,  the  latter 
“sealing”  them  for  eternity;  in  the  former  instance  death 
effects  a divorce,  in  the  latter  only  a temporary  separation. 
However,  it  is  plural  marriage  which  is  the  one  great  ques- 
tion, the  one  article  of  the  Mormon  faith  beside  which  in 
Christian  eyes  all  its  other  tenets  have  been  minor,  and  it 
is  the  dogma  which  has  evoked  the  sharpest  criticism  of 
this  Church.  Until  recently,  two  views  regarding  plural 
marriage  were  in  vogue,  the  one  very  positively  asserting  it 
to  he  obligatory,  the  other  contending  it  to  be  only  per- 
missive. Its  sanction  is  derived  from  the  so-called  reve- 
lations made  to  Joseph  Smith,  a famous  Mormon  elder,  and 
also  from  the  Mormon  system  of  theology.  “ Tncrease  and 
multiply*  is  the  supreme  law  of  God,  since  in  its  exercise 
His  kingdom  is  enlarged  and  more  beings  become  like  Him. 
Giving  birth  to  children  hastens  the  work  . . . who  helps 
most  in  this  does  best.  It  is  physically  impossible  to  rear 
many  children  with  one  wife.  To  him  therefore  whom  God 
knows  as  a superior  man  who  would  train  children  well, 
He  reveals  the  privilege  of  taking  more  than  one  wife,  and 
honors  him  by  giving  him  a larger  share  in  the  great  work. 
Not  all,  hut  a chosen  number  are  destined  for  polygamists. 
Such  are  the  practical  deductions  from  Mormon  theology. 
Under  the  system  which  it  creates  marriage  is  made  a duty, 
hut  polygamy  becomes  a virtue.”* 


* “ Marriage  and  Divorce.”— Wright,  pp.  72,  123-125.  Cf.  also  “ Book  of  Mormon  ” ; 
“ Doctrine  and  Covenants  of  the  Church  of  Jesus  Christ  of  Latter-Day  Saints,”  p.  463  seq. ; 
“ The  Vitality  of  Mormonism,”  by  Ray  Stannard  Baker,  in  the  Century  Magazine,  June,  1904. 


18 


As  the  Mormon  Chruch  recognizes  two  kinds  of  mar- 
riage, so  it  likewise  acknowledges  two  kinds  of  divorce:  the 
one  separative  for  this  life,  the  other  operative  in  the  world 
to  come.  When  divorce  is  sought  in  the  case  of  first  wives 
and  husbands  the  civil  courts  are  utilized;  but  in  the  case 
of  plural  wives,  who  have  no  legal  status  in  such  courts,  the 
appeal  is  to  the  power  which  united  them,  namely,  to  the 
Church.  The  jurisdiction  of  the  civil  court  extends  to  this 
life  only,  and  parties  divorced  in  this  court  must  also  obtain 
a decree  from  ecclesiastical  authority  if  they  desire  to  live 
apart  in  the  life  to  come.  Ecclesiastical  divorces,  either  for 
time  or  eternity,  or  both,  may  be  obtained  for  the  following 
causes: — murder,  adultery,  infanticide,  foeticide,  incom- 
patibility of  temper  rendering  it  impossible  to  live  together 
in  harmony.  A woman  may  obtain  a divorce  also  for  cruel 
treatment,  refusal  or  neglect  to  support  her  and  her  chil- 
dren, etc.  The  divorce  is  granted  by  the  President — the 
supreme  authority — of  the  Church  upon  the  application  of 
one  or  both  of  the  interested  parties,  and  upon  the  recom- 
mendation of  the  bishop  of  the  ward  wherein  they  reside. 

Today,  polygamous  or  plural  marriages  are  forbidden 
under  heavy  penalties  by  the  Constitution  and  statutory 
law  of  Utah.  But,  “law  no  more  stifled  polygamy,  short  off, 
in  Utah,  than  law  suddenly  cured  the  drink  habit  in  Maine/’ 
for,  while  there  may  be  some  question  as  to  whether  or  not 
such  marriages  have  been  entered  into  since  this  prohibition 
was  enjoined,  the  Smoot  inquiry  has  made  it  evident  that 
in  violation  of  the  statutes  and  with  the  apparent  sanction 
of  the  ecclesiastical  body,  some  members  of  the  Mormon 
Church — the  President  and  other  officers  included — prac- 
tived  polygamous  living.  Polygamy  still  exists.  “There  are 
still  Mormons,”  as  a citizen  of  Salt  Lake  City  graphically 
put  it,  “who  can  take  a car  going  any  direction  and  get 
home.”  However,  it  seems  fair  to  state  that  henceforth  this 
Church  intends  co-operating  with  the  enactments  of  the 
statutory  law  in  this  matter.  A notable  feature  of  the  Sev- 
enty-Fourth Annual  Conference  of  the  Mormon  Church  held 
in  Salt  Lake  City  in  April  of  this  year  was  the  official  dec- 
laration of  President  Joseph  Smith  on  the  subject  of  plural 


19 


marriage.  “All  such  marriages  are  prohibited,  and  if  any 
officer  or  member  of  the  Church  shall  assume  to  solemnize 
or  enter  into  any  such  marriage  he  will  be  deemed  in  trans- 
gression against  the  Church,  and  will  he  liable  to  he  dealt 
with  according  to  the  rules  and  regulations  thereof  and  ex- 
communicated therefrom.” 

Summarily,  therefore,  with  reference  to  the  numerous 
religious  denominations  in  our  country  it  may  he  said  that 
whatever  may  he  their  authoritative  doctrinal  tenets  in  this 
matter  of  marriage  and  divorce,  with  the  sole  exception  of 
the  Catholic  Church,  they  all  conform  in  practice,  to  a 
greater  or  a lesser  extent,  to  the  enactments  of  the  civil  law. 
This  is  but  natural,  for  the  absence  of  any  real  authoritative 
religious  teaching  on  the  subject  and  the  principle  of  pri- 
vate judgment,  introduced  at  the  Reformation,  logically 
force' Protestants,  in  this  matter,  to  the  only  tribunal  left 
them — that  of  the  State. 

But  marriage  is  regulated  by  the  common  law.  And 
our  common  law  is  a heritage  of  the  past.  It  has  descended 
from  nation  to  nation  in  the  course  of  modern  jurispru- 
dence. To  Europe,  then  to  America,  it  came  as  an  inheri- 
tance from  the  Roman  law,  through  the  mediaeval  church  or 
canon  law,  with  certain  modifications  resulting  from  the 
practice  of  it  in  the  different  colonies.*  The  earliest  colo- 
nists who  settled  New  England  brought  with  them  views 
of  marriage  and  divorce  which  prevailed  among  their  re- 
formed brethren,  and  in  the  Reformed  Churches  generally, 
of  the  Old  World.  It  was  part  of  their  belief  that  in  the 
New  Testament  adultery  and  desertion  were  recognized  as 
the  only  sufficient  grounds  for  the  dissolution  of  marriage. 
In  the  course  of  years  the  descendants  of  these  first  settlers, 
and  the  respective  States  which  they  peopled,  passed  from 
the  strict  observance  of  what  was  regarded  as  Scriptural 
grounds  for  divorce  into  the  loose  practices  of  the  Protest- 
ant States  on  the  European  continent  in  the  eighteenth 
century.** 


* Kent,  “ Commentaries,”  2 ed.,  vol.  II.,  p.  88. 

**  “Divorce  and  Divorce  Legislation.”  — Woolsey. 


20 


The  first  enlargement  of  causes  for  divorce  came  after 
the  Revolution,  when  the  States  had  become  independent. 
Limited  divorce,  i.  e.,  divorce  “a  mensa  et  toro,”  which  was 
unknown  in  earlier  colonial  legislation,  came  to  be  granted 
on  account  of  extreme  cruelty  by  a statute  of  Massachusetts, 
in  1786,  and  again  in  1810,  to  a wife  utterly  deserted,  or 
for  whose  support  the  husband  refused  or  failed  to  provide. 
In  1860,  gross  and  confirmed  habits  of  intoxication,  with 
cruel  and  abusive  treatment,  became  new  causes  for  this 
kind  of  severance  of  the  marriage  tie.  In  1870,  a statute 
was  passed  abolishing  divorce  from  bed  and  hoard,  and  since 
that  date  such  divorces  have  not  been  allowed  by  any  new 
statute.  In  Rhode  Island,  a divorce  from  bed  and  board — 
until  reconciliation — came  to  be  granted  for  any  cause  for 
which  absolute  divorce  was  decreed,  and  for  such  other 
causes  as  might  seem  to  require  it.  This  is  the  present  law 
in  that  State.  In  Connecticut,  limited  divorce  could  be 
granted,  in  1843,  for  habitual  intemperance  and  intolerable 
cruelty.  Today  there  is  no  limited  divorce  in  this  State. 
New  York,  to  some  extent,  followed  England  or  English 
sentiment  in  its  divorce  legislation.  An  act  of  the  Legisla- 
ture, in  1787,  authorized  divorce  “a  vinculo  matrimonii”  for 
adultery  only;  separation  or  limited  divorce  being  granted 
for  other  causes.  New  Jersey  came  to  grant  divorce,  for 
a time  or  permanently,  on  the  ground  of  cruelty.  Dela- 
ware empowered  the  courts  having  cognizance  of  divorce 
to  decree  separation  at  their  discretion  in  several  cases. 
Louisiana  seems  to  have  followed  to  some  extent,  the  French 
law  of  post-Revolutionary  times.  The  Civil  Code  of  that 
State  declares  that  “the  law  considers  marriage  in  no  other 
light  than  as  a civil  contract,”  meaning  by  this  that  it  has 
nothing  to  do  with  the  religious  aspects  of  the  institution. 
Absolute  divorce  came  to  be  granted  only  for  adultery, 
which,  in  the  husband’s  case,  was  understood  as  keeping  a 
concubine  in  the  common  house  or  publicly  elsewhere. 
Limited  divorce  was,  and  is,  decreed  for  many  causes.  South 
Carolina  is  the  one  State  in  the  Union  which  knows  not 
divorce.  In  1868,  a statute  was  enacted  to  the  effect  that 
“Divorces  from  the  bond  of  matrimony  shall  not  be  allowed 


21 


but  by  the  judgment  of  a court,  as  shall  be  prescribed  by 
law”  An  act,  approved  Jan.  31,  1872,  made  legal  divorces 
on  • the  ground  of  adultery  or  willful  desertion  in  either 
party;  but  by  an  act,  approved  in  1878,  it  was  provided  that 
“all  acts  and  parts  of  acts  relating  to  the  subject  of  grant- 
ing divorce  be,  and  the  same  are,  hereby  repealed.”  The 
power  to  pass  such  laws  at  some  future  time  still  remains 
under  the  new  Constitution.  The  newer  States  of  the  West 
and  Northwest  seem  to  have  adopted,  in  a great  measure, 
the  existing  laws  of  the  older — and  especially  of  the  New 
England — States,  as  may  be  judged  from  the  tendency  to 
multiply  causes  for  divorce. 

Correspondingly  with  the  gradual  growth  of  statute 
enactments  relative  to  causes  for  divorce  came  a develop- 
ment in  the  method  of  granting  the  decree.  It  appears  that 
at  first  divorces  were  generally,  if  not  exclusively,  granted 
only  by  an  act  of  the  respective  colonial  legislatures.  Many 
of  the  States,  in  fact,  nearly  all  the  older  ones,  for  a long 
time  adhered  to  this  method  of  dissolving  the  marriage 
bond.  This  was  in  accordance  with  the  practice  then,  and 
until  quite  recently,  in  vogue  in  England.  Of  New  York, 
in  this  connection,  Chancellor  Kent  writes : “For  many  years 
after  New  York  became  an  independent  State  there  was 
not  any  lawful  mode  of  dissolving  a marriage  in  the  life- 
time of  a person  but  by  a special  act  of  the  legislature.”* 
This  was,  in  all  probability,  the  custom  of  the  great  major- 
ity, at  least,  of  the  other  States  in  the  early  days.**  How- 
ever, as  the  States  developed,  and  new,  more  pressing,  and 
seemingly  more  important  duties  became  incumbent  on  the 
Legislatures  of  the  various  States,  the  matter  of  divorce 
was  relegated  to  the  courts  in  whose  jurisdiction  it  now  is. 
By  an  act  of  Congress,  approved  July  30,  1886,  the  Legisla- 
tures of  the  territories  of  the  United  States  are  prohibited 
from  passing  any  special  laws  granting  divorce,  and  a simi- 
lar prohibition  with  regard  to  the  granting  of  divorce  by 
the  Legislature  itself  is  now  contained  in  the  constitutions 


* Woolsey,  “Divorce  and  Divorce  Legislation,”  p.  204. 

**  Bishop.  “ Marriage,  Divorce  and  Separation,”  vol.  I.,  Nos.  1422-1471. 


22 


of  all  the  States  except  Alabama,  Connecticut,  Delaware, 
Georgia,  Kansas,  Maine,  Massachusetts,  New  Hampshire, 
Rhode  Island  and  Vermont.  Tennessee  in  the  Constitution 
of  1834,  was,  perhaps,  the  first  State  to  prohibit  legislative 
divorce.  This  prohibition  was  renewed  in  the  Constitution 
of  1870.  In  the  Constitution  of  Mississippi,  framed  in  1868, 
a similar  restriction  is  found.  Pennsylvania,  in  the  Consti- 
tution of  1873,  expressly  forbids  the  Legislature  to  pass  any 
local  or  special  law  “for  granting  divorce.”  In  the  New 
England  States  and  the  other  States  in  whose  constitutions 
there  is  no  such  restriction  of  legislative  power,  the  grant- 
ing of  divorce  by  special  legislative  act  is  now  hardly  known. 
In  Massachusetts,  a law  of  1792  transferred  divorce  to  the 
courts.  No  special  law  has  been  enacted  since  then,  and 
Mr.  Bishop  remarks  that  “a  legislative  divorce  would  not 
now  be  sustained  by  the  courts.”*  This,  too,  is  the  opinion 
of  Carroll  D.  Wright.  Of  Massachusetts  and  New  Hamp- 
shire he  writes : “In  both  States  jurisdiction  has  been  vested 
by  the  Legislature  in  the  courts,  and  hence  legislative 
divorces  cannot  be  granted  therein.”**  In  Connecticut,  the 
Legislature  still  has  power — petitions  being  presented  to  it 
up  to  1878 — to  vote  divorce  in  special  cases,  v.  g.,  in  cases 
not  provided  for  by  existing  law,  though  the  business  is 
ordinarily  transacted  by  the  courts.  In  Maine,  in  1876,  an 
amendment  to  the  Constitution  authorized  the  Legislature 
“from  time  to  time,  to  provide  as  far  as  practicable,  by  gen- 
eral laws,  for  all  matters  usually  appertaining  to  special  or 
private  legislation.”  Divorce  coming,  as  it  does,  under  this 
head,  the  Maine  Legislature  retains  the  right  to  grant  it.  So 
in  general  it  may  be  said  that  in  all  the  States  legislative 
divorces  are,  in  effect,  prohibited,  and  the  granting  of 
divorce  by  the  courts  is  provided  for  and  regulated  by  the 
statutes  of  all  the  States  except,  of  course.  South  Carolina 
where  divorce  is  unknown.***  And  this  brings  us  at  once 
to  a consideration  of  the  legislative  peculiarities  of  our 
divorce  system  which  constitute  what  has  been  termed  “The 
Conflict  of  Laws.” 

* “ Marriage,  Divorce,  and  Separation,’  vol.  II.,  No.  1456. 

**  “ Marriage  and  Divorce,”  p.  79. 

***  “ Marriage,  Divorce,  and  Separation,”  vol.  II.,  Nos.  1472-1492. 


23 


In  his  report  on  “Marriage  and  Divorce  in  the  United 
States/*  Col.  Wright  has  enumerated  forty-two  causes  for 
which  absolute  divorce  is  granted  in  the  various  States  and 
Territories  of  our  Union.*  It  may  he  observed  here  that  a 
number  of  the  causes  which  he  has  specified  are  grounds  on 
which  a marriage  is,  by  law,  declared  null  and  void,  and 
such  an  adjudication  is  in  no  strict  sense  divorce,  although 
the  statutes  of  many  States  so  term  it.  Therefore,  it  would 
seem  that  the  number  of  causes  for  which  divorce  in  a strict 
sense  is  granted  could  he  materially  reduced.**  However, 
these  causes  are  numerous  enough.  They  range  from  the 
alleged  Scriptural  ground  of  adultery  down  through  the 
dismal  gamut  of  cruelty,  drunkenness,  desertion  and  con- 
viction of  felony  to  that  butt  of  the  humorist,  “incompati- 
bility of  temper.**  The  various  States  differ,  too,  with  re- 
gard to  the  number  of  causes  which  they  admit  as  justifying 
divorce.  For  instance,  New  York  admits  hut  one  ground; 
Maryland  allows  divorce  for  five  causes,  Massachusetts,  for 
nine;  Kentucky  and  Washington,  for  eleven. 

Moreover,  with  regard  to  the  same  statutory  ground, 
striking  differences  are  manifest  in  the  various  States.  We 
will  consider  several  of  the  more  generally  acknowledged 
statutory  causes.  Adultery  is  the  one  cause  which  is  most 
general  throughout  the  country,  and  the  cause  which  is 
most  seriously  advocated  as  being  admitted  in  Sacred  Scrip- 
ture. Yet  with  regard  to  it  surprising  differences  exist  in 
the  various  State  statutes.  In  some  of  our  States,  v.  g., 
New  York,  Massachusetts,  Michigan,  and  most  of  the  others, 
a single  act  of  adultery — admitted  or  proved — by  either 
party  is  sufficient  ground  for  divorce.  In  other  States,  v.  g. 
in  Kentucky  and  North  Carolina,  while  this  is  sufficient 
cause  for  divorce  in  favor  of  the  husband,  it  is  not  such  for 
the  wife;  her  husband  must  he  found  actually  “living  in 
adultery**  with  his  paramour.  Kentucky,  too,  allows  divorce 
to  the  husband  for  “lewd  and  lascivious  behavior**  on  the 
part  of  the  wife  without  actual  proof  of  an  act  of  adultery, 
hut  declines  to  extend  this  right  to  the  wife.  In  justifica- 

* “ Marriage  and  Divorce,”  p.  113. 

**  “ The  Divorce  Problem  : A Study  in  Statistics.”  — W.  F.  Wilcox,  p.  42. 


24 


tion  of  this  enactment  it  has  been  asserted  that  the  conse- 
quences of  such  conduct  by  the  woman  may  be  more  serious 
in  the  eyes  of  the  law  than  in  the  man’s  case,  but  this  is 
hardly  true  in  the  eyes  of  the  moralist. 

Conviction  and  imprisonment  for  crime  is  another  well 
established  ground  for  divorce — being  admitted  in  all  but  a 
few  States  and  the  District  of  Columbia — yet  the  same  want 
of  uniformity  regarding  its  interpretation  exists.  In  some 
States,  v.  g.  Arizona,  Delaware,  Indiana,  Iowa,  Minnesota, 
and  Mississippi,  divorce  is  not  granted  for  any  crime  unless 
the  conviction  is  subsequent  to  the  marriage;  in  others  no 
such  restriction  exists,  as  is  the  case  in  Arkansas,  California, 
and  Colorado.  In  North  Carolina  and  Louisiana,  a wife  may 
obtain  a divorce  if  her  husband  has  been  simply  indicted  for 
an  infamous  crime,  even  though  he  may  never  be  arrested, 
brought  to  trial  and  convicted  of  the  offence  of  which  he  is 
charged.  In  many  more  States,  v.  g.  Arkansas,  California, 
Colorado,  Delaware,  Idaho,  Illinois,  Indiana,  Iowa,  Mis- 
souri, Montana,  Nevada,  Oregon,  Tennessee,  Utah,  Virginia, 
a conviction  is  absolutely  necessary.  In  many,  too,  the  con- 
viction must  have  been  followed  by  actual  imprisonment, 
as  is  the  case  in  Alabama,  Arizona,  Connecticut,  Georgia, 
Kansas,  Massachusetts,  Michigan,  Minnesota,  New  Hamp- 
shire, Pennsylvania,  Texas,  Vermont,  Washington,  Wiscon- 
sin and  Wyoming.  Moreover,  the  place  of  confinement  and 
the  term  of  imprisonment  vary  in  the  different  States.  For 
instance,  it  requires  nearly  twice  as  long  an  imprisonment 
in  Massachusetts  (five  years)  as  in  the  adjoining  State  of 
Vermont  (three  years)  to  authorize  a divorce.  In  Michi- 
gan, Wisconsin  and  Maine,  sentence  to  imprisonment  for 
life,  and  confinement  under  it,  renders  the  marriage  abso- 
lutely dissolved  without  any  decree  of  divorce  or  other  legal 
process.  In  New  York,  a subsequent  marriage  is  permit- 
ted to  one  whose  former  husband  or  wife  has  been  sentenced 
to  imprisonment  for  life.  In  this  State,  and  several  others, 
viz.,  Arizona,  Minnesota,  Michigan,  Nebraska,  Massachu- 
setts, Vermont,  Virginia,  Delaware,  and  Wyoming,  the  stat- 
utes provide  that  no  pardon  granted,  after  a divorce  for 
imprisonment  is  obtained,  shall  be  deemed  to  restore  the 
party  to  his  or  her  previous  conjugal  rights. 

25 


In  Arizona,  Indiana,  Washington,  and  Wisconsin,  “any 
cruel  treatment”  entitles  a wife  to  a divorce;  in  Massachu- 
setts, “any  cruel  or  abusive  treatment.”  In  California, 
Colorado,  Delaware,  Florida,  Idaho,  Kansas,  Maine,  Mon- 
tana, Nebraska,  Nevada,  New  Hampshire,  Ohio,  Rhode 
Island,  and  Wyoming,  it  must  be  “extreme  cruelty,”  which 
Illinois  requires  to  he  “repeated.”  In  xHabama,  Arkansas, 
Iowa,  and  Missouri,  the  cruelty  must  he  such  as  to  “en- 
danger life;”  in  New  Hampshire  and  Delaware,  such  as  “to 
endanger  health  or  reason;”  in  Pennsylvania,  such  as  “to 
render  living  longer  together  absolutely  insupportable.”  In 
Pennsylvania,  and  a few  other  States,  the  wife  alone  can 
sue  for  divorce  on  the  ground  of  alleged  cruelty;  hut  most 
States  concede  this  right,  also,  to  the  Jiusband.  In  New 
Hampshire,  cruelty  must  exist  at  the  very  time  the  petition 
is  filed.  In  most  of  the  States  it  suffices  that  either  has 
been,  at  any  time  since  the  marriage,  guilty  of  cruelty 
towards  the  other  party.  In  Kentucky,  it  is  necessary  that 
such  treatment  shall  have  continued  for  at  least  six  months. 

Desertion  is  another  common  cause  for  divorce,  and 
more  decrees  are  granted  for  this  than  for  any  other  one 
cause.  It  invites  “collusion,”  and  leaves  no  such  stigma  as 
does  “adultery,”  or  “cruelty.”  But  with  regard  to  it  the 
language  of  the  various  State  statutes  is  confusing.  In  one 
State  it  is  simple  “abandonment,”  in  others  “utter  deser- 
tion,” or  “wilful  desertion,”  or  “wilful,  continued,  and  ob- 
stinate,” or  “wilful  and  malicious.”  In  some  States,  v.  g. 
Louisiana  and  Rhode  Island,  desertion  must  have  continued 
for  five  years  to  enable  the  aggrieved  party  to  sue  for  di- 
vorce, though  the  court  may  in  the  latter  State,  issue  a 
decree  for  desertion  of  a shorter  period.  Three  years’ 
absence  is  required  in  Connecticut,  Delaware,  Georgia, 
Maine,  Massachusetts,  Maryland,  New  Hampshire,  Ohio, 
Texas,  Vermont,  Virginia,  and  West  Virginia  two  years,  in 
Alabama,  Illinois,  Indiana,  Iowa,  Michigan,  Mississippi,  Ne- 
braska, New  Jersey,  North  Carolina,  Pennsylvania  and  Ten- 
nessee; while  in  Arkansas,  California,  Colorado,  Florida, 
Idaho,  Kansas,  Kentucky,  Minnesota,  Missouri,  Montana, 
Nevada,  North  Dakota,  Oklahoma,  Oregon,  South  Dakota, 


26 


Utah;  Washington,  Wisconsin,  and  Wyoming,  one  year  is 
all  that  is  required  by  law;  and  Arizona  enjoys  the  dis- 
tinction of  granting  divorce  on  the  ground  of  desertion  if 
either  party  has  been  absent  six  months.  Pennsylvania  dif- 
fers from  the  adjoining  States  of  Maryland,  Ohio,  Dela- 
ware, and  West  Virginia;  Kentucky,  from  Tennessee; 
Georgia  from  North  Carolina  and  Florida,  etc.  In  Connec- 
ticut and  Vermont,  mere  “disappearance”  of  the  husband, 
for  seven  years,  without  having  been  heard  from  is  suffi- 
cient; in  New  Hampshire  and  Ohio  an  absence  of  three 
years  without  having  been  heard  from  suffices,  while  in 
Colorado  and  Montana  the  accused  party  must  he  proven  to 
have  “left  the  State  without  intention  of  returning.”  Other 
variations,  too,  exist  with  regard  to  this  cause  for  divorce, 
hut  we  need  not  dwell  on  them. 

It  would  seem  that  so  simple  an  offense  as  drunken- 
ness would  not  admit  of  much  variety  or  diversity  of  appli- 
cation. In  all  States  and  Territories,  except  Illinois,  Mary- 
land, New  Jersey,  New  York,  South  Carolina,  Texas,  Ver- 
mont, and  Virginia,  it  is  a sufficient  cause  for  divorce.  In 
California,  it  is  “habitual  intemperance,”  such  as  disquali- 
fies the  person  a great  portion  of  the  time  from  properly 
attending  to  business,  or  such  as  would  reasonably  imply  a 
source  of  great  mental  anguish  to  the  innocent  party.  In 
Nevada  and  Kentucky,  the  habit  must  he  “so  great  as  to  in- 
capacitate the  party  from  contributing  his  or  her  share  to 
the  support  of  the  family.”  In  Louisiana,  it  must  be  of 
such  a nature  as  to  render  the  living  together  of  man  and 
wife  insupportable.  In  many  States  the  wife  is  entitled  to 
a divorce  if  her  husband  has  contracted  “gross  and  con- 
firmed habits  of  intoxication.”  But  even  this,  simple  as  it 
may  seem,  is  attended  with  not  a few  variations,  especially 
as  regards  duration.  In  New  Hampshire  and  Ohio,  it  must 
have  existed  three  years;  in  Illinois,  Colorado,  and  Oregon, 
two  years;  in  most  States  only  one  year,  while  in  Georgia 
and  a few  others  the  statutes  read  “for  such  time  as  the 
jury  in  its  discretion  may  deem  sufficient.”  Moreover,  what 
is  understood  by  “gross  and  confirmed  habits  of  intoxica- 
tion,” or  how  often  one  must  he  drunk  to  constitute  “habit- 


27 


ual  intemperance,”  is  nowhere  carefully  defined,  so  the 
requirements  of  particular  cases  may  vary  as  the  character 
of  the  judges  before  whom  the  cases  are  brought. 

Looking  beyond  the  specific  causes  considered  above, 
let  us  direct  our  attention  to  the  vague  and  indefinite 
grounds  for  divorce  contained  in  what  is  called  “The  Om- 
nibus Clause”  in  our  divorce  laws.  Formerly,  in  many  of 
our  States,  the  list  of  causes  entitling  one  to  a divorce 
ended  with,  “any  other  cause  within  the  discretion  of  the 
court.”  The  statute  of  Arizona  once  read:  “When  the  case 
is  within  the  reason  of  the  law,  within  the  general  mischief 
the  law  is  intended  to  remedy,  or  within  what  it  may  he 
presumed  the  legislators  establishing  the  foregoing  causes 
would  have  provided  against  had  they  foreseen  the  specific 
case.”  At  present  this  “Omnibus  Clause”  has  generally 
disappeared  from  our  statute  law,  but  not  wholly,  for  a 
near  equivalent  still  disfigures  the  statutes  of  a few  States. 
In  Florida,  “the  habitual  indulgence  of  a violent  and  un- 
governable temper”  is  ample  ground  for  divorce.  Ken- 
tucky, Missouri,  Oregon,  Wyoming,  and  Washington,  will 
grant  divorce  for  “indignities  sufficient  to  render  life  bur- 
densome,” and  the  list  of  specific  causes  for  which  Wash- 
ington will  decree  divorce  concludes  with,  “For  any  other 
cause  deemed  by  the  court  sufficient,  if  satisfied  that  they 
can  no  longer  live  together.”  What  case  could  not  he  cov- 
ered by  this  statute!  Sad  experience  but  emphasizes  the 
opinion  that  the  discretionary  power  of  the  courts,  in  this 
particular  matter,  does  not  always  work  to  the  best  inter- 
ests of  the  morality  of  the  community  at  large. 

Turning  from  the  consideration  of  the  great  variety 
and  diversity  in  the  specified  causes  for  divorce  found  in 
our  law,  if  we  examine  the  legal  proceedings  by  which 
divorces  are  obtained,  we  find  an  equal,  if  not  a greater, 
diversity.  The  first  inquiry  under  this  branch  of  the  prob- 
lem is  as  to  the  residence  required  in  a State  before  one 
can  sue  for  a divorce.  In  Massachusetts  and  Vermont,  “No 
divorce  shall  he  decreed  (except  under  special  circum- 
stances in  Massachusetts)  for  any  cause,  if  the  parties  never 
lived  together  as  husband  and  wife”  in  these  States;  “nor 


28 


for  a cause  which  accrued  in  another  State  or  country,  un- 
less the  parties,  before  such  cause  accrued,  lived  together 
as  husband  and  wife”  in  these  States;  “nor  for  a cause 
which  accrued  in  another  State  or  country,  unless  one  of 
the  parties  lived  in”  these  States.  In  many  of  our  States 
no  such  restrictive  cause  exists;  for  instance,  in  Maine, 
there  is  no  statutory  requirement  as  to  length  of  residence 
when  the  “parties  were  married  in  this  State  or  cohabited 
there  after  marriage.”  And  as  to  causes  occurring  out  of 
the  State  in  which  suit  for  divorce  is  filed  the  most  perplex- 
ing differences  exist  in  the  statutes  of  our  States  and  Ter- 
ritories. In  Massachusetts,  Connecticut,  and  New  Jersey, 
the  petitioner  must  have  resided  three  years  next  preceding 
the  filing  of  the  libel  when  both  parties  were  residents, 
otherwise  five  years;  in  Florida,  Indiana,  Maryland,  North 
Carolina,  and  Tennessee,  two  years.  One  year  is  the  statu- 
tory requirement  in  all  the  other  States,  except  Idaho,  Ne- 
braska, Nevada,  and  South  Dakota,  in  which  States  only 
six  months’  residence  is  required. 

In  many  States  and  Territories  the  statutes  make  pro- 
vision as  to  the  manner  in  which  the  defendant  in  a divorce 
suit  shall  be  served  with  notice  thereof,  and  reasonable  care 
is  taken  that  the  notice  is  served  on  him  or  her.  In  other 
States  the  provisions  on  this  point  evidently  admit  of  great 
abuse,  it  being  left  to  the  unsupported  affidavit  of  one  inter- 
ested party,  or  to  the  mere  statement  of  the  applicant  to 
determine  the  fact  of  the  defendant’s  absence  beyond  the 
reach  of  the  court.  Notice  by  publication  or  mail,  or  both, 
is  very  frequently  regarded  as  sufficient. 

In  the  modes  of  proof,  rules  of  trial,  etc.,  hardly  any 
two  States  can  he  said  to  entirely  agree.  However  it  is  true 
that  a large  measure  of  uniformity  in  substance  underlies 
the  differences  with  regard  to  this  point,  and  there  is  little 
evidence  to  prove  that  the  variations  in  procedure  have 
exerted  a marked  influence  on  the  divorce  rate  of  the  coun- 
try. As  this  aspect  of  the  question  would  involve  too  much 
of  the  technicality  of  law,  the  plain  statement  of  the  fact 
is  deemed  sufficient  for  our  purpose. 


29 


Again,  the  effect  and  consequences  of  a decree  of 
absolute  divorce  vary  according  to  the  latitude  and  longitude 
of  the  place  where  it  is  obtained.  In  most  of  our  States 
such  a decree  fully  and  completely  dissolves  the  marriage 
contract  as  to  both  parties.  In  California  and  Louisiana,  it 
places  them  in  the  same  situation  as  if  the  marriage  had 
never  been  performed.  After  an  absolute  divorce,  either 
party  may,  in  most  States,  marry  again  at  any  time,  as  in 
Connecticut,  Pennsylvania,  North  Carolina,  Kentucky,  Ten- 
nessee, Texas,  Oregon,  and  the  same  would  follow  where 
the  law  is  silent.  However,  in  some  States  certain  limita- 
tions exist.  The  libellee  (or  either  party  in  Minnesota  and 
Kansas)  cannot,  in  Mississippi,  Maine,  and  Nebraska,  marry 
until  two  years  (in  Missouri,  five  years;  in  Vermont,  three 
years;  in  Kansas,  six  months)  shall  have  elapsed  from  the 
issuance  of  the  final  decree;  or,  as  in  Missouri,  sooner  by 
special  decree  of  the  court.  In  New  York,  a party  con- 
victed of  adultery  and  subsequently  divorced  on  this  ground 
cannot  marry  again  at  any  time  during  the  lifetime  of  the 
former  partner,  but  the  parties  may  remarry  each  other. 
In  Maryland,  Virginia,  and  Mississippi, — as  to  the  person 
against  whom  a divorce  has  been  granted  for  adultery,  or 
in  Maryland  and  Virginia  for  abandonment,  the  court  may 
decree  that  he  or  she  is  not  to  marry  again  under  the  pains 
and  penalties  of  adultery.  Such  a decree,  however,  may  be, 
at  any  time  afterwards,  revoked  or  annulled  in  Virginia.  In 
a few  States,  no  husband  nor  wife  divorced  for  his  or  her 
adultery,  can  marry  the  “particeps  criminis”  during  the 
lifetime  of  former  husband  or  wife,  as  is  the  case  in  Penn- 
sylvania, Delaware,  and  Tennessee;  nor  at  any  time,  as  is 
the  case  in  Louisiana,  where  such  marriage  renders  the 
divorced  party  thereto  guilty  of  bigamy.  But  in  many 
States  no  such  statute  exists  relative  to  this  case,  and,  there- 
fore, the  defendant  guilty  of  adultery  may  be  married  at 
any  time,  even  to  the  “particeps  criminis.”  In  Georgia 
and  Alabama,  the  whole  matter  of  rights  and  disabilities  of 
marriage  after  divorce  is  left  to  the  discretion  of  the  jury 
or  court  granting  divorce.  And  as  a matter  of  fact,  the 
statutory  provisions  of  all  these  States  framed  for  the 


30 


laudable  purpose  of  preventing  the  guilty  party  from  marry- 
ing again  are  utterly  futile  because  they  do  not  operate  out- 
side the  limits  of  these  respective  States.  In  many  another 
State  the  party  affected  by  these  statutory  limitations  can 
be  lawfully  married,  and  a marriage  good  and  valid  where  it 
is  celebrated  is,  by  universal  and  necessary  rule,  good  and 
valid  everywhere.  Such  a statutory  restriction,  therefore, 
imposes  on  the  affected  party  only  the  inconvenience  of 
going;  into  another  State  to  enter 'into  his  or  her  second 
marriage.  This  fact  was  made  very  patent  a few  years  ago 
by  a “tramp  marriage”  of  two  members  of  New  York’s 
exclusive  set, — the  woman  being  divorced  in  New  York,  and 
married  again  a few  hours  later  in  Connecticut. 

Therefore,  it  may,  it  must  be  said  that  the  result  of 
the  varied  legislation  and  the  loose  administration  of  the 
divorce  laws  of  our  States  is  that,  far  from  protecting  the 
rights  of  our  citizens  and  of  the  marital  union,  these  very 
laws  invite,  as  it  were,  the  very  evils  which  they  claim  to 
repress  and  punish.  Ostensibly  the  causes  for  divorce  are 
limited,  and  theoretically  this  should  curtail  the  number 
of  divorces  granted,  but  practically — given  the  desire  for 
divorce  and  the  requisite  money  for  counsel  fees — the  cov- 
eted release  from  the  marriage  tie  is  almost  certain.  If 
the  statutory  enactments  of  one  State  prohibit  the  grant- 
ing of  the  decree,  a temporary  removal  to  another  jurisdic- 
tion is  all  that  is  necessary  to  secure  it.  There  the  disso- 
lution of  the  marriage  contract  can  be  effected  for  causes 
and  upon  notice  and  testimony  which  would  be  insufficient 
in  the  State  of  actual  residence.  The  number  of  divorces 
continues  to  increase,  many  of  which,  legally  valid  in  the 
jurisdiction  where  they  were  obtained,  would  be  declared 
fraudulent  and  void  in  other  States,  and  marriages  by  the 
divided  parties,  held  to  be  legal  in  the  State  where  they 
were  entered  into,  would  be  considered  bigamous  in  other 
places.  If  it  is  the  husband  who  secures  the  divorce  and 
remarries,  the  personal  status  of  two  women  and  the  prop- 
erty rights  of  two  families  are  involved.  The  first  wife  is 
still  the  lawful  wife,  entitled  to  all  the  rights  and  privileges 
of  a wife,  in  the  State  in  which  the  first  marriage  was  con- 


31 


tracted,  and  probably  in  many  others,  except  the  one  in 
which  the  fraudulent  divorce  was  obtained.  The  second 
wife  is  entitled  to  dower  in  the  real  estate  of  her  husband 
under  the  law  of  the  State  in  which  her  marriage  took  place, 
and  the  children  of  that  marriage  are  legitimate  in  that 
State,  but  elsewhere  they  may  be  illegitimate,  and  their 
mother  entitled  to  no  dower. 

Should  things  be  as  they  are?  Should  a slight  varia- 
tion in  latitude  and  longitude  present  such  conflicting  rights 
and  obligations  in  the  same  marital  relation?  Is  there,  in 
the  nature  of  things,  a reason  why  the  invisible  line  between 
adjoining  States  and  Territories  should  give  rise  to  such 
visible  and  marked  contrasts  in  the  statutory  law  of  each 
under  exactly  the  same  fact  and  circumstance?  Is  it  con- 
sistent that,  in  the  same  country,  the  law  of  one  place  should 
be  such  as  to  subject  one  woman  to  a life  of  continued  and 
inevitable  hardship,  when  another  woman,  a few  miles  dis- 
tant, is  legally  entitled  to  complete  and  permanent  relief? 
If,  in  the  opinion  of  the  citizens,  it  is  to  the  best  interests 
of  one  State  not  to  permit  divorce  for  any  other  cause  than 
the  alleged  Scriptural  ground,  is  it  advisable  and  conducive 
to  sound  morality  to  recognize  any  other  reason  as  suffi- 
cient just  across  the  border  line?  And  if  in  one  State 
other  injuries  to  a wife  besides  marital  infidelity  are  con- 
sidered sufficient  reasons  for  the  dissolution  of  the  marriage 
bond,  does  not  consistency  demand  that  this  view  of  things 
be  taken  elsewhere  in  a country  throughout  the  length  and 
breadth  of  which  the  conditions  of  life  are  practically  the 
same?  It  has  well  been  said  that,  “Without  at  all  under- 
rating the  moral  guilt  of  adultery,  and  whatever  views  may 
be  taken  of  it  by  those  whose  conceptions  of  personal  purity 
are  most  exalted,  it  is  not  easy  to  see  how  in  its  legal  char- 
acter and  effect  it  is  a greater  crime  against  a wife  that 
her  husband  should  have  committed  an  act  of  infidelity, 
than  that  he  should  have  made  an  assault  upon  her  with 
intent  to  murder,  or  should  have  rendered  her  life  intoler- 
able by  a long  series  of  brutal  cruelties  or  by  excessive  and 
incurable  intemperance,  or  without  excuse  should  have 
deliberately  deserted  her,  or  brought  about  the  same  result 


32 


by  the  commission  of  some  felony  that  consigned  him  to  a 
prison  for  a term  of  years.”  Should  we  have,  then,  on  this 
vital  subject  of  divorce,  one  law  in  New  York  and  another 
in  Chicago;  one  rule  in  Boston  and  another  in  San  Fran- 
cisco? Certainly  not.  Uniformity  is  desirable,  and  it  has 
been  urged  for  many  years. 

Can  uniformity  be  obtained  in  this  matter?  What 
steps  are  necessary  to  procure  a practical  measure  of 
reform  ? This  is  the  important  question.  Opinions  are,  and 
will  be,  divided  concerning  the  other  questions  on  the  sub- 
ject. Divorces  will  continue  to  be  granted.  At  present  we 
have  forty  odd  States  and  Territories.  We  are  over  seventy 
millions  of  people;  stretched  three  thousand  miles  from 
ocean  to  ocean,  dwelling  on  sea-coast,  plain  and  mountain; 
men  and  women  of  diverse  nations  and  races,  with  diverse 
customs,  holding  diverse  religions,  and  varying  shades  of 
opinion  on  all  social  questions.  The  sentiment  of  the  peo- 
ple of  the  different  States  is,  and  in  the  nature  of  things 
will  continue  to  be,  diverse  upon  the  subject  of  divorce, 
thereby  making  it  inevitable  that  there  shall  be  a corre- 
sponding diversity  of  laws  concerning  it.  Divorce  legisla- 
tion has  come  in  response  to  a decided  public  sentiment  in 
its  favor.  It  has  not  been  brought  about  by  vicious  or 
necessarily  irreligious  people.  Nor  was  it  instituted  by 
those  who  believe  in  yielding  to  an  evil  if  you  cannot  cor- 
rect it,  but  rather  by  sincere  and  thoughtful  legislators  who 
were,  it  can  hardly  be  doubted,  honest  in  their  convictions 
that  in  compelling  ill-mated  couples  to  remain  united  society 
was  perpetrating  upon  itself  an  evil  vastly  more  serious  in 
its  consequences  than  that  which  might  come  from  the  en- 
actment of  divorce  laws.  However  much  we  may  deplore 
the  weakening  of  the  family  tie — that  seems  to  be  a feature 
of  our  modern  civilization — the  causes  will  be  found,  to  a 
great  extent,  in  the  changed  and  changing  religious,  social, 
economic,  and  industrial  conditions  of  our  people,  and  not 
so  much  in  the  divorce  laws  which  follow,  but  do  not  create, 
the  demand  for  them.  At  the  present  time  a great  major- 
ity of  the  thinking  people  of  the  country  recognize  the  dis- 
astrous consequences  of  our  lax  divorce  laws  and  their  care- 


33 


less  administration.  At  the  same  time  they  are  alive  to  the 
necessity  of  reform  in  the  matter,  which  necessity  is  patent 
from  the  want  of  uniformity  in  the  laws  of  the  several 
States  prescribing  causes  for  divorce,  concerning  the  resi- 
dence, in  the  respective  States,  of  the  parties  to  a divorce 
suit,  the  notice  to  he  served  on  the  defendant,  and  also  from 
the  want  of  uniformity  in  the  force  and  effect  of  a judicial 
decree  dissolving  the  marriage  contract.  But  how  can  uni- 
formity of  divorce  legislation,  and  consequently  reform  in 
this  matter,  be  obtained?  Two  methods  are  advocated: 
either  by  State  or  by  National  legislation. 

There  are  present  forty  odd  law-making  powers  con- 
tinually in  action  within  the  United  States;  some  of  them, 
in  the  newer  States,  called  upon  to  frame  new  codes  on 
the  basis  of  older  ones,  and  all  more  or  less  busy  at  read- 
justing the  old  laws  to  a somewhat  altered  condition  of 
society,  trying  experiments  in  legislation,  or  correcting  the 
errors  of  earlier  legislation.  As  a consequence,  there  is  a 
wearisome  amount  of  laws  on  divorce  existing  at  any  one 
time.  At  present,  as  in  the  past,  each  State  prescribes  the 
qualifications  of  the  parties  to  the  marriage  contract,  the 
manner  in  which  it  shall  be  solemnized  and  authenticated, 
the  causes  for  which  it  may  be  set  aside  or  annulled,  and 
the  effect  of  the  dissolution  upon  the  personal  status  and 
property  rights  of  the  parties  and  of  their  children.  Now 
the  movement  to  obtain  uniformity  in  divorce  legislation 
throughout  the  country  by  State  law  advocates  the  follow- 
ing:— “Let  one  State,  like  New  York,  take  an  advanced 
scientific  position.  Let  it  formulate  a scientific,  harmonious, 
homogeneous  system  of  marriage  and  divorce  law;  and  . . 

then,  by  convention  or  otherwise”  influence  the  other  States 
to  adopt  a similar  system.  And  thus  have  “the  Legisla- 
tures of  the  various  States  act  together  and  co-operate  in 
this  matter.”* 

When  Mr.  Hill  was  Governor  of  New  York,  a commis- 
sion was  appointed  to  act  in  accordance  with  this  move- 
ment, and  later  a Conference  of  Commissioners,  appointed 
by  the  various  States — to  the  number  of  thirty  odd  at  the 

* Judge  Barret,  “ New  York  Daily  Tribune,”  Nov.  25, 1883. 


34 


present  writing — has  been  organized  for  the  purpose  of 
affecting  legislation  in  this  matter.  Some  progress  toward 
securing  uniformity  has  been  made  by  the  action  of  these 
State  Boards  of  Commissioners.  At  least,  some  uniformity 
of  public  sentiment  has  been  secured.  One  step  at  a time  is 
a good  motto  in  all  legal  reform,  and  this  securing  of  a uni- 
form public  opinion  is,  perhaps,  in  the  light  of  our  present 
divorce  legislation,  the  first  step  to  be  taken.  Yet  when  one 
considers  that  there  are  now  over  forty  distinct  and  sover- 
eign States,  each  with  its  own  system  of  divorce  laws  and 
procedure;  its  own  usages,  customs,  and  traditions;  its  own 
views  of  the  sacredness  or  laxity  of  the  marriage  relation; 
its  natural  attachment  to  its  historic  legislation,  it  is  easy  to 
conceive  how  difficult  it  is  to  confidently  expect  uniformity 
through  the  action  of  the  many  State  Legislatures.  The 
efforts  of  “The  American  Bar  Association/'’  too,  illustrate 
the  case.  This  association  was  formed  in  1878,  and  is  com- 
posed of  the  leading  members  of  the  bar  and  of  legislators 
from  all  over  the  country.  One  of  its  leading  objects  is, 
by  the  interchange  of  thought  and  opinion,  to  secure  uni- 
formity of  legislation  in  business  matters,  such  as  commer- 
cial law,  the  law  of  land  titles,  and  the  like,  by  separate 
legislative  action  in  each  State.  However,  notwithstanding 
the  earnest  efforts  of  so  many  influential  men  in  so  many 
quarters,  but  little  progress  has  been  made  in  this  direc- 
tion. So  it  would  seem  that  there  is  not  much  to  encour- 
age the  hope  of  uniform  divorce  legislation  bv  any  such 
means.  In  a movement  of  this  nature  there  is  wanting  an 
acknowledged  standard  to  which  to  appeal.  In  the  nature 
of  things,  each  State  is  reluctant  to  retrace  its  steps,  or  to 
abandon  its  long  established  code.  Yet,  to  thave  this  move- 
ment effective,  there  must  be  concession  and  compromise; 
the  various  State  systems  must,  as  it  were,  be  fused  together 
and  a new  system  cast  from  the  mass.  The  manifold  diffi- 
culties attending  this  process  are  manifest.  Uniformity  by 
separate  legislative  action  can  be  brought  about  only  by 
many  years  of  persistent  and  arduous  labor. 

A most  important  measure  of  reform,  or,  at  least,  a mo- 
mentous step  in  that  direction,  and  one  strongly  advocated 


85 


today,  is  the  entrusting  of  the  entire  matter  to  the  one 
controlling  power  of  the  National  Congress.  That  body  now 
has  the  right  to  enact  laws  regulating  marriage  and  divorce 
for  the  District  of  Columbia  and  for  the  various  Territories. 
Extend  this  power  over  the  remaining  portion  of  the  coun- 
try, and  the  first  step  is  gained,  so  it  is  affirmed;  and  more- 
over, the  advocates  of  this  movement  assert,  there  is  noth- 
ing in  the  structure  of  our  government  to  prevent  this 
power  being  conferred  on  the  Federal  authority.  True,  this 
would  necessitate  an  amendment  to  the  Federal  Constitu- 
tion, and  the  securing  of  such  an  amendment  may  prove 
impracticable.  That  it  is  beset  with  many  difficulties  is 
conceded;  but,  it  is  maintained,  these  are  not  so  great  as 
has  been  imagined,  nor  are  they  so  unconquerable  as  those 
necessarily  encountered  in  the  plan  for  securing  uniform 
legislation  through  the  co-operation  of  the  individual  States. 
Those  who  advocate  this  method  of  reform  in  divorce  legis- 
lation contend  that  the  controversy  as  to  which  shall  legis- 
late on  the  subject — the  State  or  the  Federal  Government — 
reduces  itself  to  a mere  question  of  public  convenience  and 
welfare.  Therefore,  let  it  he  clearly  shown  that  Congress 
can  best  legislate  on  the  subject,  and  in  a manner  conducive 
to  the  best  interests  of  the  nation  at  large,  and  then  the 
people  can  he  trusted  to  demand  that  their  representatives 
authorize  it. 

The  objections  to  the  amendment  have  been  more  or 
less  magnified.  To  the  objection  that  if  Congress  is  em- 
powered to  legislate  on  matters  pertaining  to  marriage  and 
divorce  "it  will  eventually  absorb  all  powers  incidental  to 
the  subject,”  it  is  answered  that  "Congress  could  exercise 
only  such  express  powers  as  were  granted  by  the  amend- 
ment— the  powers  necessarily  implied  in  the  express  grant.” 
It  is  true  that  the  United  States’  courts  would  have  juris- 
diction to  enforce  the  laws  which  Congress  might  enact 
under  such  an  amendment.  That  jurisdiction,  however, 
would  extend  only  to  cases  brought  under  these  laws,  and  to 
cases  in  which  some  question  arising  under  them  is  involved. 
Such  an  amendment  would  not  necessarily  confer  upon  Con- 
gress or  the  United  States  courts  jurisdiction  over  the  other 


36 


relations  of  “husband  and  wife ;”  over  the  relations  of 
“parent  and  child;”  of  “dower  and  courtesy,”  etc.  Jurisdic- 
tion on  these  matters  could  he  left  where  it  now  is — with 
the  States.  Divorce  might,  also,  be  left  to  the  State  courts, 
if  neither  party  chose  to  resort  to  the  Federal  tribunals. 

But  granted  that  such  an  amendment  as  proposed 
would  involve  the  surrender  by  the  States  of  jurisdiction  in 
these  matters,  that,  it  is  asserted,  would  not  be  an  invincible 
argument  against  its  adoption.  The  real  point  at  issue  is 
whether  or  not  it  would  be  better  for  the  people  of  the 
United  States,  in  order  to  secure-  uniformity  in  the  laws 
regulating  marriage  and  divorce,  and  in  the  personal  status 
and  property  rights  of  divorced  parties  and  their  children, 
that  the  Federal  authority  should  possess  the  additional 
power  proposed  by  the  amendment? 

To  take  domestic  relations  from  State  control  and  make 
them  Federal  questions  is,  indeed,  a momentous  step.  Those 
who  admire  paternal  government,  under  any  plausible  name, 
may  well  favor  the  project  as  a long  step  towards  centraliza- 
tion, for  if  Congress  is  given  control  of  marriage  and  divorce 
it  is  hard  to  say  what  shall  be  refused  it.  However,  though 
the  vacillating  policy  of  Congress  in  finance,  tariff,  and 
other  matters,  gives  but  little  assurance  of  wise  or  even 
steady  legislation  in  family  affairs,  as  Federal  legislation 
on  marriage  and  divorce  seems  to  be  very  much  advocated 
today  it  is  well  that  we  should  consider  it  at  some  length. 
So  supposing  a constitutional  amendment  made  and  the 
matter  brought  within  the  control  of  Congress,  would  the 
present  difficulty,  the  present  evil,  be  removed  ? Uniformity 
of  law  might  be  obtained,  the  present  legal  uncertainty  of 
marital  relations  would  be,  to  some  extent,  remedied,  and,  if 
the  law  is  like  that  of  the  stricter  States,  much  would  be 
gained  for  the  stability  of  the  family.  But  would  the  in- 
crease of  divorces  be  checked,  or  even  appreciably  affected  ? 
Would  the  general  morality  of  the  country  be  much  better? 

In  legislating  on  the  subject.  Congress — if  it  did  not 
adopt  a “liberal”  system  of  divorce,  and  of  the  deplorable 
results  of  which  on  the  family  and  on  society  at  large  there 
can  be  no  question — would  most  likely  adopt  one  or  more  of 


37 


tlie  following  courses  which  are  open  to  it,  namely,  restric- 
tion of  marriage;  restriction  of  divorce  laws;  restriction  of 
re-marriage  after  divorce;  or  the  institution  of  civil  mar- 
riage and  divorce. 

Restriction  of  Marriage. — In  all,  or  nearly  all,  of  our 
States  certain  restrictions  as  to  age,  etc.,  exist  at  the  pres- 
ent time.  Now  it  is  contended,  “that  many  of  the  evils 
which  spring  up  in  married  life  might  he  prevented,  the 
number  of  divorces  decidedly  lessened,  and  the  deplorable 
consequences  thereof  in  some  measure  avoided”  if  Con- 
gress could  enact  laws  by  which  the  age  of  lawful  marriage 
would  be  raised  to  years  of  actual  rather  than  assumed  dis- 
cretion, that  lawful  marriage  could  not  be  entered  into 
under  full  age  without  the  written  consent  of  parent  or 
guardian,  and  that  the  parties  could  be  put  under  oath  as 
to  their  age,  antecedents,  etc.,  and  false  swearing  made 
perjury — and  punishable  as  such.*  In  this  connection.  Dr. 
William  C.  Robinson — the  present  Dean  of  the  Catholic 
University  of  America  Law  School — while  a professor  at 
Yale  wrote : — “No  person  should  be  marriageable  under  the 
age  of  twenty-one,  and  a marriage  celebrated  between  per- 
sons either  of  whom  is  under  age  should  be  ipso  facto 
void.”**  At  first  sight  it  would  seem  that  in  a law  of  this 
nature  would  be  found  something  of  an  effective  remedy. 
If  marriage  could  be  contracted  only  by  persons  of  a ma- 
ture age,  with  sufficient  means  of  support,  etc.,  it  would  be 
but  natural  to  expect  a more  stable  condition  of  the  marital 
relations.  However,  no  direct  connection  between  the  age  of 
marriage  and  the  liability  to  divorce  can  be  made  out  from 
statistics.  Yet  it  may  be  said  that  communities  in  which 
early  marriages  are  most  common  are  comparatively  most 
free  from  divorce.  Prince  Krapotkine  tells  us  that  in  Rus- 
sia, “the  peasants,  for  the  most  part,  marry  their  sons  at 
eighteen  and  their  daughters  at  sixteen,”  and  the  Russian 
peasantry  are,  perhaps,  with  the  exception  of  the  Irish,  the 
least  subject  to  divorce.  Moreover,  4,490  husbands  or  wives 


* For  the  moral  worth  of  the  physiological  aspects  of  this  question  cf.  Catholic  Uni- 
versity Bulletin,  April,  1900;  “ The  Restriction  of  Marriage,”  by  John  W.  Melody. 

**  Journal  of  Social  Science,  (Am.  As3.  XIV.)  1881,  p.  136,  “The  Diagnostics  of 
Divorce.” 


38 


under  twenty  years  of  age  were  living  in  Massachusetts  in 
1902.* **  To  this  number  must  be  added  an  indetermin- 
able number  of  persons  married  between  the  age  of  twenty 
and  twenty-one  to  ascertain  the  number  of  persons  whose 
marriages  would  be  declared  void  by  such  a law  as  Dr. 
Robinson  proposes.  Now  how  large  a proportion  of  these 
5,000  persons — a very  conservative  estimate  of  the  number 
— would  have  remained  virtuous  and  continent  in  the  face  of 
a law  forbidding  their  marriage  ? It  is  difficult  to  say.  The 
experience  of  certain  countries,  v.  g.  Bavaria,  in  which 
restrictions  were  placed  upon  marriage,  may  give  us  some 
idea  of  what  might  be  expected  here  if  such  a law  were  in 
force.  Where  restrictions  have  been  placed  on  marriage, 
“the  number  of  marriages  in  a year  decreased  rapidly,  but 
parallel  with  this  decrease  went  a large  increase  in  the  num- 
ber of  illegitimate  births.”  When  the  law  was  repealed  and 
the  restrictions  were  removed,  the  annual  number  of  mar- 
riages increased  and  “simultaneously  with  this  came  a 
marked  decrease  in  the  number  of  illegitimate  births.”  A 
consideration  of  the  liability  to  immorality  of  this  nature 
evidences  the  wisdom  of  the  Catholic  Church  in  permitting 
lawful  wedlock  to  persons  of  the  early  age  assigned  in  her 
Canon  Law.  So  in  the  present  condition  of  affairs  in  our 
country,  “legal  restrictions  on  marriage  can  hardly  be 
deemed  a satisfactory  method  of  checking  divorce.  Restric- 
tions on  marriage  reduce  the  number  of  marriages,  and  thus 
ultimately  the  number  of  divorces”  . . . but,  “the  at- 

tendant evils  (or,  at  least,  their  grave  probability)  are  so 
great  . . . as  to  make  such  restrictions  unwise. 

Restriction  of  Divorce . — Laws  and  their  administra- 
tion affect  divorce.  This  is  axiomatic.  In  fact,  the  first 
impulse  is  to  attribute  the  whole  evil  in  our  country  to  lax 
and  easy  divorce  laws,  and  to  a more  careless  administration 
of  them.  So  the  contention  is  that  the  enactment  by  Con- 
gress of  a code  of  stringent  divorce  laws,  with  stricter  meth- 
ods of  administration  would  alleviate,  if  not  completely  ob- 
literate, the  present  sad  condition  of  affairs. 

* “Sixty-First  Report  of  Births,  Marriages  and  Deaths  in  Massachusetts.” 

**  “ The  Divorce  Problem.  A Study  in  Statistics.”  — Wilcox,  pp.  60-66. 


39 


It  is  true  that  were  legal  divorces  less  easy  to  obtain 
such  frequent  separations  would  not  occur.  It  is  also  true 
that  a stricter  divorce  law,  v.  g.  one  admitting  fewer  causes 
should  reduce  the  number  of  divorces.  But  when  one  con- 
siders that  divorce  statutes  are  only  the  embodiment  and 
outgrowth  of  the  increasing  popular  demand  for  a more  easy 
separation;  that  the  laws  only  reflect  public  sentiment  on 
the  subject,  what  reasonable  prospect  is  there  to  expect  that 
Congress  would  enact  any  law  on  the  subject  which  would 
differ  materially  from  the  State  laws  ? What  public  opinion 
demands  in  the  States  may  he  expected  from  the  represen- 
tatives of  the  people  of  these  States  in  Congress,  for  gener- 
ally Congressmen  are  guided  by  the  sentiments  of  their 
constituents. 

However,  suppose  a code  of  stringent  divorce  laws  was 
enacted  and  the  causes  of  divorce  were  thereby  limited, 
would  this  eradicate  the  evil?  Would  the  stability  of  the 
marital  union  be  assured?  Would  its  inviolability  be  guar- 
anteed ? 

Connecticut,  in  1878,  by  repealing  the  law  permitting 
divorce  in  that  State  for  “any  such  misconduct  as  perma- 
nently destroys  the  happiness  of  the  petitioner  and  defeats 
the  purpose  of  the  marriage  relation,”  restricted  her  divorce 
code.  However,  the  number  of  divorces  for  that  year  was 
412,  exactly  the  same  as  for  the  year  before.  The  law  im- 
mediately diminished  the  divorces  for  misconduct  with  or 
without  causes  by  99,  but  there  are  just  99  more  for  other 
causes,  which  would  seem  to  show  that  it  cannot  be  admit- 
ted that  the  decrease  is  sufficient  to  indicate  the  influence 
of  the  change  of  law.  It  may  be  urged,  however,  that  Con- 
necticut and  some  other  States,  which  have  repealed  some 
of  the  laxer  laws,  have  been  content  with  half-hearted  meas- 
ures. South  Carolina,  alone,  by  prohibiting  divorce  alto- 
gether, has  gone  to  the  root  of  the  matter. 

It  is  probably  true  that  many  marry  now  with  the 
thought  in  their  hearts  that  if  they  do  not  find  the  union  to 
their  happiness,  they  may  break  it  and  marry  again.  But 
if  divorce  was  stringently  restricted,  or  entirely  abolished, 
persons  of  common  prudence  would  resign  themselves  to 


40 


the  inevitable,  and  when  they  lie  under  the  necessity  of 
passing  their  lives  together  they  would  endeavor  to  forgive 
or  overlook  many  frivolous  quarrels  and  disgusts  which, 
under  the  prospect  of  an  easy  separation,  are  frequently  in- 
flamed into  the  most  deadly  hatred.  Therefore,  such  a law 
as  we  are  considering  would  seem  to  he  conducive  to  good 
results.  However,  setting  aside  as  inadvisable  and  imprac- 
ticable, in  the  present  condition  of  things,  the  adoption  by 
the  other  States  of  the  South  Carolina  legislation — which 
has  not  tended  to  produce  a very  enviable  morality  in  that 
State* — we  may  say  that  restrictions  on  divorce  by  enact- 
ment of  stringent  laws  and  limitations  of  causes  for  which 
divorce  is  granted  exert  but  a slight  influence  on  the  divorce 
rate,  for  frequently  a crime  is  committed  for  the  very  pur- 
pose of  having  a cause  for  divorce,  and  as  long  as  any  cause 
is  admitted  this  is  always  possible.  It  cannot  be  gainsaid 
that  such  restrictions  would  have  some  salutary  effects,  but 
the  effectiveness  of  such  legislation  would  depend  on  the 
moral  sentiment  of  the  people,  which,  at  present,  does  not 
seem  to  be  such  as  would  warrant  the  development  of  the 
good  results  naturally  inherent  in  the  legislation  proposed. 

One  efficient  means  of  restricting  divorce  by  law  is 
noted  by  Mr.  Wilcox.  It  is  to  make  the  procuring  of  the 
decree  expensive.  The  necessary  evidence  might  be  readily 
furnished,  but  the  requisite  money  would  not  be  forthcom- 
ing. The  English  law,  by  which  prior  to  1858  divorces  were 
granted  only  by  Parliament  and  consequently  at  a consid- 
erable expense,  illustrates  the  working  of  this  principle. 
But,  as  Mr.  Wilcox  further  remarks,  “the  obvious  objection 
to  having  one  system  of  law  for  the  rich  and  another  for 
the  poor,  makes  discussion  of  this  method  of  restricting 
divorce  unnecessary.”  (Wilcox,  op.  cit.  p.  58). 

Restriction  of  Re-marriage. — Almost  invariably  in  a 
discussion  on  this  problem  of  divorce  it  is  persistently  as- 
serted by  many  writers  that  most  frequently  divorce  has 
been  sought  after  and  obtained  for  the  sole  purpose  of  giv- 
ing the  party  interested  an  opportunity  of  entering  upon  a 


# “Marriage,  Separation  and  Divorce.” — J.  P.  Bishop,  vol.  I.,  Nos.  58-59. 


41 


new  and  more  congenial  marital  relation.  So  it  has  been 
affirmed  that  a limitation  of  re-marriage  would  greatly  re- 
duce the  number  of  divorces. 

In  some  States,  as  noted  above,  provisions  have  been 
adopted  prohibiting  the  guilty  party  from  marrying  again. 
But,  affording  the  really  innocent  party  the  right  to  re- 
marry necessarily  and  consistently  involves  the  extending 
of  this  same  privilege  to  the  guilty  party.  If  the  former 
marriage  has  been  dissolved  for  the  one  party,  it  no  longer 
exists  at  all,  and  consequently  it  is  also  dissolved  for  the 
other.  A husband  without  a wife,  and  vice  versa,  is  a con- 
tradiction in  words  and  in  fact.  Moreover,  the  present  pro- 
visions of  certain  States  restricting  the  re-marriage  of  the 
guilty  party  in  a divorce  suit  are  practically  nil  owing  to 
the  comparatively  easy  access  to  other  jurisdictions  wherein 
such  provisions  are  set  at  naught.  Therefore  it  is  argued 
that  a uniform  law  denying  the  privilege  or  right  of  re- 
marriage to  either  the  innocent  or  the  guilty  divorced  party 
— except,  perhaps,  they  re-marry  each  other — would  he 
something  of  a panacea  for  the  divorce  evil  in  our  country. 
The  late  Hon.  E.  J.  Phelps  has  most  emphatically  stated  this 
position.  “The  question  is  not,”  he  wrote,  “whether  divorce 
laws  shall  exist,  hut  whether  they  shall  permit  the  divorced 
parties  to  re-marry.  Here,  it  is  believed,  will  he  found  the 
mainspring  of  the  whole  mischief.  If  that  right  were  taken 
away,  nine-tenths,  perhaps,  ninety-nine  hundredths  . . 

of  the  divorce  cases  would  at  once  disappear.  In  the  vast 
majority  of  instances  the  desire  on  the  part  of  one  or  other 
or  both  to  re-marry  is  the  foundation  of  the  whole  proceed- 
ing.”* 

It  may  he  remarked  in  passing  that  from  the  point  of 
view  of  fact  it  is  most  difficult,  if  not  morally  impossible, 
to  give  any  real  appreciation  of  the  scientific  value,  for  our 
country,  of  this  emphatic  statement  of  Mr.  Phelps.  No 
means  of  subjecting  it  to  a scientific  test  are  at  hand.  We 
have  no  statistics  of  re-marriage. 


* “ Divorce  in  the  United  States.” — The  Forum,  Dec.,  1889,  p.  352. 


42 


Now  the  total  abolition  of  divorce  in  the  sense  of  a 
divorce  so  dissolving  the  marital  union  as  to  confer  the 
privilege  of  re-marriage  on  one  or  both  parties  would  result 
practically — and  this  is  what  Mr.  Phelps  advocates — in  the 
adoption  of  legal  separation,  i.  e.,  separatio  a mensa  et  toro. 
This  would  he  the  adoption  by  the  State  of  the  policy  of  the 
Catholic  Church.  While  conceding  that  divorce  is  some- 
times not  only  beneficial,  but  necessary  to  society,  it  is  main- 
tained that  absolute  divorce  is  not  tolerable  even  from  a 
high  ethical,  apart  from  the  theological,  point  of  view.  All 
that  can  he  accomplished  by  divorce  for  the  protection  of 
the  innocent  and  injured  individual,  and  for  the  preserva- 
tion of  the  household — the  dissolution  of  which  is  threat- 
ened by  the  infidelity  of  husband  or  wife — can  he  secured  by 
legal  separation.  It  is  a divorce  to  all  intents  and  purposes 
as  effectual  as  any,  except  that  it  does  not  allow  either  party 
to  contract  a second  marriage  while  the  other  consort  is 
living. 

However,  suppose  this  kind  of  divorce  were  adopted  and 
recognized  by  civil  law,  and  that  all  the  sanction  of  the  law 
was  applied  to  enforce  the  observance  of  the  common  law 
and  statute  law  in  conformity  with  this  principle,  would 
this  be  a satisfactory  solution  of  the  difficulty  and  an 
effectual  remedy  for  the  evils  in  question?  The  practice  of 
divorce  of  this  nature  in  the  Catholic  Church  is  certainly 
effectual  in  the  case  of  Catholics,  and  we  believe  that  were 
our  civil  law  changed  so  as  to  permit  only  this  kind  of 
divorce,  such  legislation  would  be  productive  of  much  good 
in  the  country  at  large.  It  would  create  a good  impression 
which  would  he  far-reaching.  Persons  contemplating  matri- 
mony would  think  seriously  before  entering  into  a union 
from  which  there  is  no  total  escape.  Persons  already 
united  would,  in  many  cases,  make  a virtue  of  necessity,  and 
the  more  readily  resign  themselves  to  bear  with  meekness 
the  many  petty  grievances  which  are  so  often  the  seed  of 
discord  in  married  life,  and’  which  in  the  end  lead  to  the 
divorce  court.  Ultimately,  such  a law  would  create  and 
firmly  ground  a better  and  healthier  public  sentiment  rela- 
tive to  the  sacredness  of  marriage. 


43 


But,  were  it  introduced  into  our  midst  at  present,  the 
moral  condition  of  the  country  is  such  that  its  real  moral 
worth  would  not  he  immediately  experienced.  Separations, 
undoubtedly  very  numerous,  would  take  the  place  of  the 
present  divorces,  and  not  being  allowed  to  re-marry,  it  is  but 
human  to  expect  that  the  parties  would  resort  to  other 
means  of  gratifying  their  desires.  Passion  knows  no  law. 
All  the  objections  to  the  restriction  of  re-marriage  would 
weigh  with  equal  force  against  this  restriction.  But  time 
would  tell.  The  better  sentiment  would  eventually  prevail; 
the  true  man  would  conquer  the  tendency  of  his  lower  na- 
ture. Combined  with  limitation  of  causes  for  granting  such 
a divorce  this  would  he  an  ideal  policy  for  a State  to  adopt, 
it  is  as  near  to  a complete  solution  of  the  question  as  is 
possible  to  civil  legislation,  and  in  the  course  of  time  the 
beneficial  results  of  such  a law  would  he  experienced  in  the 
family — in  the  peace  and  concord  of  which  lie  the  happi- 
ness and  the  prosperity  of  the  State. 

The  Institution  of  Civil  Marriage  and  Divorce. — Sup- 
pose Congress  should  follow  the  example  of  countries  on 
the  European  continent,  which  exercise  jurisdiction  over 
matters  pertaining  to  marriage  and  divorce,  and  would  in- 
stitute civil  marriage.  Suppose  it  instituted  a marriage 
similar  to  the  “marriage  civil  obligatoire”  of  the  French 
Code  of  1792,  in  which  was  set  forth  the  principle  that  mar- 
riage is  a civil  institution,  its  celebration  a civil  transaction 
requiring  in  no  case  the  ministry  of  religion.  This  prin- 
ciple was,  in  1804,  incorporated  into  the  Napoleonic  Code, 
and  its  influence  is  still  felt.  Would  such  a system  solve  the 
problem  for  our  country? 

The  most  fundamental  and  important  part  of  such* 
legislation  as  here  proposed  is  the  explicit  and  consistent 
adoption  of  the  theory  of  the  civil  contract  as  the  ruling 
principle  of  divorce  statutes.  In  such  a system  marriage  and 
divorce  would  he  considered  together,  and  the  laws  in  rela- 
tion to  them  made  harmonious  and  homogeneous.  At  pres- 
ent it  would  seem  as  though  our  laws  considered  marriage 
and  divorce  as  independent  problems.  Marriage  is  called 
“a  civil  contract,”  and  is  permitted  to  he  entered  into  as 


44 


informally  as  any  contract  that  can  be  made.  Viewed  in 
itself  it  is  considered  as  a civil  contract,  but  when  looking 
at  its  dissolution  our  laws  seem  to  regard  it  as  more  than  a 
contract,  and,  to  some  extent,  as  a sacrament.  This  is  not 
consistent.  If  laws  are  to  regard  marriage  in  the  light  of 
religion  and  as  something  sacred,  then  divorce  is  properly 
to  he  considered  under  the  same  aspect.  But  if  marriage 
is  solely  and  simply  a civil  contract  in  the  eyes  of  our  law, 
then  it  should  be  so  regarded  when  laws  are  made  for  its 
dissolution. 

It  is  not  contended  that  legislation  on  this  matter  of 
divorce  is  necessarily  based  upon  the  religious  or  sacra- 
mental idea  of  marriage,  but  that  something  of  this  spirit  is 
found  in  the  history,  in  the  development,  of  our  divorce  stat- 
utes is  undeniable.  It  is  this  idea  which  seems  to  animate 
the  legislator  when  he  takes  under  advisement  any  modifi- 
cation of  an  existing  code.  It  is  justly  argued,  we  think, 
that  legal  restrictions  in  this  matter  of  divorce  may  be 
attributed  to  the  fact  that  our  legislators  invariably  attach 
some  religious  idea  to  marriage. 

But  in  the  case  of  the  institution  of  civil  marriage, 
when  marriage  is  considered  simply  as  a civil  contract, — 
and  all  idea  of  its  religious  and  sacramental  nature  is  set 
aside — the  law  must  grant  no  divorce  at  all,  from  the  motive 
of  expediency,  or  it  must  grant  it  in  certain  cases  from  the 
same  motive.  In  other  words,  the  law  must  grant  or  refuse 
divorce  as  the  public  and  private  good  may  seem  to  require, 
and  if  it  grants  divorce  for  one  cause  it  must  also  grant  it 
for  all  causes  similar  and  equal  to  this  one.  This  throws  an 
altogether  new  aspect  on  the  question.  Instead  of  asking, 
“What  does  the  law  of  God  command,  forbid,  or  permit  with 
respect  to  the  making  or  the  dissolving  of  the  marriage 
contract?” — as  seems  to  be  the  case,  to  some  extent  at 
present — the  law  maker  must  only  inquire,  “What  law  does 
human  wisdom  counsel  me  to  make  for  the  common  good?” 

With  regard  to  the  moral  worth  of  such  an  alteration 
in  our  marriage  laws — if  such  a change  were  to  be  made — 
it  must  be  said  that,  unsatisfactory  as  things  are  at  present, 
it  is  preferable  to  leave  them  as  they  are  rather  than  to  flv 


45 


into  the  arms  of  the  dangers  naturally  inherent  in  this  sys- 
tem which,  in  principle,  reduces  marriage  to  the  merest 
contract  and  so  degrades  the  family.  It  is  an  indisputable 
fact  that  something  of  an  idea  of  the  religious  sacredness 
of  marriage  pervades  the  mass  of  the  people  of  this  coun- 
try. We  have  seen  that  it  is  this  idea  which  crops  out  occa- 
sionally in  the  work  of  our  lawmakers  when  engaged  in 
formulating  our  divorce  legislation  which  is,  in  spirit,  based 
on  this  view  of  marriage.  It  is  to  the  credit  of  our  nation, 
as  well  as  to  her  welfare,  that  something  of  this  old  and 
proper  sacramental  idea  still  exists  and  exercises  its  influ- 
ence on  the  marital  relations.  It  tends  to  preserve  the  sanc- 
tity and  inviolability  of  the  family,  though,  in  our  modern 
civilization,  this  seems  to  be  in  a decadent  state.  But  sad, 
indeed,  is  it  to  contemplate  the  lamentable  condition  of 
affairs  almost  necessarily  inaugurated  under  a system  which 
destroys  the  very  prop  of  the  family — its  sacred  character. 
It  is  of  the  very  essence  of  civil  marriage  to  obliterate  the 
religious  idea  of  the  marriage  state,  and  thus  greatly  weaken 
the  family  tie.  Of  the  result  of  such  a system  on  society  at 
large  there  can  be  no  doubt.  Marriage  is  the  very  corner- 
stone of  the  social  structure,  for  the  family  is  constituted 
by  marriage,  and  society  is  constituted  by  the  family.  And 
the  welfare  of  the  nation  demands  that  the  family  be  more 
stable  than  it  could  possibly  be  under  a system  of  civil  mar- 
riage. Social  corruption,  whether  ancient  or  modern,  began 
in  the  family,  and  the  corruption  of  the  family  carried  with 
it  the  ruin  of  society  and  of  all  civilization.  The  voice  of 
history — sacred  and  profane — emphatically  asserts  that  the 
renowned  and  powerful  nations  of  antiquity  went  out  with 
the  family,  and  it  is  to  the  restoration  of  the  family — to 
the  assertion  and  maintenance  of  the  sanctity  and  stability 
of  marriage — that  the  modern  nations  chiefly  owe  the  moral 
greatness  they  possess.  “History  repeats  itself,”  is  an  old 
and  true  saying,  and  judging  from  history,  past  and  present, 
it  seems  but  natural  to  infer  that  the  future  greatness  and 
prosperity  of  our  nation  will  increase  or  decrease  in  propor- 
tion as  the  nation  will  approach  to,  or  depart  from,  the  ideal 
of  an  absolutely  stable  marriage.  The  institution  of  civil 


46 


marriage  would  certainly  mark  a decided  step  in  the  way  of 
departure.  Such  a system,  threatening  as  it  does  the  disso- 
lution of  the  home,  though  it  may  wear  the  guise  of  law 
and  operate  through  so  dignified  an  instrumentality  as  a 
court  of  justice,  is  only  the  entering  wedge  of  anarchy. 

However,  in  general,  suppose  a constitutional  amend- 
ment made  and  a system  of  divorce  legislation  enacted  pre- 
scribing uniformity  throughout  the  country,  would  it  be 
satisfactory?  It  is  unfortunate,  in  the  existing  condition 
of  things,  that  a divorce  obtained  in  one  State  should  fail  of 
its  effect  in  another,  and  that  a man  or  woman  should  be  a 
husband  or  wife  in  New  York,  and  at  the  same  time  a single 
and  unmarried  man  or  woman  in  the  Dakotas  or  Nebraska. 
This,  at  least,  is  one  of  the  troubles  which  Federal  legisla- 
tion might  remove.  And  if  the  Federal  law  was  a strict 
one,  similar  to  that  of  some  States,  the  family  would  be,  to 
some  extent,  benefited.  Its  stability  would  be  somewhat 
the  more  firmly  established.  But  would  such  legislation 
remove  all  difficulty?  There  seems  to  be  no  reason  why  it 
should  fail  to  do  so  for  those  who  believe  in  the  power  of 
the  nation  to  make  laws  of  this  kind;  but  those  who  main- 
tain that  the  State  has  no  rights  in  so  far  as  the  essence 
and  indissolubility  of  marriage  are  concerned  cannot  accept 
the  decisions  of  the  civil  power  in  this  matter.  Catholics 
are  among  this  number.  They  cannot,  in  theory,  approve 
of  Federal  legislation  any  more  than  of  State  legislation  on 
this  subject;  but  they  can  nevertheless  be  glad  of  any 
change,  in  the  divorce  laws  of  our  country,  which  makes 
the  actual  results  of  such  legislation  less  disastrous. 

The  Catholic — as  becomes  a Christian — believes  that 
the  words  “What  God  hath  joined  together  let  no  man  put 
asunder,”  are  final  and  decretive.  The  troublesome  ques- 
tions are,  “What  constitutes  a true  and  valid  marriage  ?”  and 
“In  what  cases  will  God  Himself  annul  it?”  These  are  the 
two  points  which  touch,  and  most  touch,  the  Christian  con- 
science, because  that  every  true  marriage  has  the  divine 
sanction  no  Christian  can  doubt.  So  it  is,  then,  a matter 
of  the  law  of  God.  But  who  shall  interpret  this  law  ? Shall 
it  be  the  law  of  the  land  ? This  may  seem  reasonable  enough. 


47 


The  law  of  the  land  has,  indeed,  a right  to  speak  in  the 
name  of  God,  and  speaking  thus  it  commands  our  obedi- 
ence. All  authority,  parental,  social,  ecclesiastical,  national, 
is  from  God,  as  St.  Paul  tells  us.  Therefore,  it  may  seem 
that  the  law  of  the  land  can  speak  in  this  matter  as  it  can 
in  other  matters — that  of  property,  for  instance.  But  when 
we  come  to  examine  the  question  more  thoroughly  we  find 
a difficulty  in  this  particular  matter  of  marriage  which  does 
not  exist  elsewhere.  There  is  little  or  no  danger  that  the 
same  property  will  be  decided  to  belong  to  two  different 
persons  within  the  territories  of  the  law’s  jurisdiction;  and 
even  in  the  case  of  conflicting  national  laws,  as  in  the  mat- 
ter of  copyright,  or  patent,  there  is  no  essential  inconsis- 
tency in  a thing  belonging  to  one  man  in  one  place,  and  to 
another  man  in  another  place.  But  in  the  Catholic  view 
of  the  fitness  of  things  there  is  such  an  incongruity  in  a 
man’s  being  the  husband  of  one  woman  in  one  place  and 
of  another  woman  in  another  place.  As  a Christian  he  can- 
not believe  that  a man  can  in  one  country  be  divorced  in 
the  sight  of  God  from  one  wife  and  have  another,  and  in 
another  country  return  to  the  one  whom  he  left;  and  the 
only  logical  solution  of  the  difficulty  is  the  one  of  which  he 
is  in  possession. 

Naturally,  the  Catholic  can  hardly  expect  the  world 
in  general,  or  the  United  States  in  particular,  to  accept  his 
views  on  the  subject.  But  all  who  are  professedly  Chris- 
tians believe,  or  at  least  should  believe,  that  there  is  an 
essential  right  and  wrong  in  this  matter  which  mere  human 
law  cannot  make  or  unmake,  and  to  which  human  law  should 
conform.  But  how  shall  man  find  out  what  constitutes 
this  right  and  wrong?  Scripture  is  vainly  called  to  aid; 
scholars  disagree  as  to  its  meaning,  and  their  conclusions 
only  become  more  widely  divergent  by  discussion  until,  at 
last,  faith  in  Scripture  itself  begins  to  waver  and  mean- 
while the  evil  we  are  striving  to  remedy  grows  daily  worse 
and  worse.  Therefore,  the  only  way  to  have  thoroughly 
satisfactory  marriage  and  divorce  laws  is  to  have  a law- 
making power,  the  jurisdiction  of  which  is  world-wide. 
And  the  only  way  to  get  at  the  divine  law  on  this  most  im- 


48 


« 

portant  subject  is  to  have  a court  which  can  interpret  it — 
a court  from  which  there  can  be  no  appeal — so  that  all  who 
believe  in  the  legitimate  authority  of  this  court  shall  be 
able  to  act  with  a clear  conscience  in  accepting  its  decisions. 
This  is  the  Catholic  idea  and  practice.  To  a greater  or 
lesser  extent,  uo  doubt,  the  same  idea  may  prevail  in  other 
Christian  denominations;  individual  members  of  the  various 
religious  sects  in  the  country  at  large  may  be  as  firmly  con- 
vinced of  this  fact  as  Catholics  are.  But  the  absence  of  any 
authoritative  religious  teaching  outside  the  Catholic  Church 
and  the  principle  of  private  judgment  introduced  at  the 
time  of  the  Reformation,  has  forced  those  outside  the  com- 
munion of  this  Church,  in  this  as  well  as  in  other  practical 
matters,  to  the  only  tribunal  left  them — that  of  the  State. 
So  the  State  has  come  to  be  the  arbiter.  And  difficult  as  it 
is  for  the  State  to  make  laws  which  seem  on  paper  to  meet 
the  exigencies  of  such  a mixed  community  as  ours,  it  is  still 
more  difficult  to  execute  such  laws  after  they  have  been 
| enacted.  Mere  external  legislation  cannot  do  much  unless 
the  religious  and  moral  convictions,  sentiments  and  habits  of 
the  people  stand  behind  it,  support  it,  and  co-operate  with 
it.  It  has  been  well  said  that  “Civil  legislation  and  statutes 
are  merely  a kind  of  mechanism  serving  a useful  purpose  in 
the  living,  organic  society  when  they  are  in  harmony  with, 
and  proportioned  to  its  present,  actual  intentions  and  voli- 
tions.” So  far  as  these  common  intentions  and  volitions  are 
regulated  by  respect  for  the  religious  and  moral  sacredness 
of  marriage,  thus  far  civil  law  can  give  protection  to  the 
civil  rights  and  redress  the  civil  wrongs  which  arise  out  of 
the  marriage  contract.  But  civil  law,  in  the  present  condi- 
tion of  our  country,  with  the  diversity  of  religious  opinions 
which  are  current  on  this  matter  of  marriage,  may,  to  some 
extent,  alleviate  the  divorce  evil,— it  cannot  satisfactorily 
remedy  it.  And  any  reform  to  be  really  effective  in  this 
matter,  must  of  necessity  go  deeper  than  the  mere  question 
i of  divorce.  It  must  begin  at  the  bottom.  It  must  strive 
| to  annihilate  the  root  of  the  evil  instead  of  lopping  off  the 
! branches.  Rather  than  say,  “It  should  be  a matter  of  ex- 
treme difficulty  to  obtain  a divorce,”  our  law-makers  can 


49 


V 


more  profitably  lament  the  looseness  and  utter  recklessness 
with  which  marriages  are  too  often  contracted  and,  if  pos- 
sible, devise  ways  and  means  to  check  this  great  social  evil. 
Unfortunately,  our  legislators  do  not  heed  measures  in- 
tended to  place  safeguards  around  marriage.  They  frown 
upon  such  provisions,  and  characterize  them  as  “an  infringe- 
ment of  personal  liberty.”  This  should  not  be  so.  Marriage 
should  be  sedulously  safeguarded.  It  is  the  germ  of  the 
family,  and  moralists  and  sociologists  all  agree  that  the 
family  is  the  nursery  of  society,  the  hope  of  the  State,  and 
the  cradle  of  its  destinies.  Marriage  is  the  bulwark  of  the 
nation.  If  marriages  are  rightly  contracted  this  protection 
of  a nation’s  welfare  is  greatly  fortified,  and  its  weakness 
minimized,  for  with  the  growth  of  right  marriage — marriage 
entered  into  with  a sense  of  its  sacred  and  inviolable  char- 
acter— divorce  will  disappear;  but  with  wrong  and  thought- 
less marriage  divorce  is  parasitic.  Therefore,  let  the  beauti- 
ful concept  of  Christian,  Catholic  marriage  more  abound;  let 
men  and  women  learn  to  view  marriage  as  something  holy, 
in  which  the  husband  is  the  protector,  the  wife  the  com- 
forter. Then  will  we  meet  with  more  marriages  in  which, 
while  the  husband  performs  his  allotted  role,  the  wife  em- 
bodies the  beautiful  picture  of  her  drawn  by  Washington 
Irving: — “As  the  vine  which  has  long  twined  its  graceful 
foliage  about  the  oak,  and  has  been  lifted  up  by  it  in  sun- 
shine, will,  when  the  hardy  plant  is  rifted  by  the  thunder- 
bolt, cling  round  it  with  caressing  tendrils  and  bind  up  its 
shattered  boughs,  so  it  is  beautifully  ordered  by  Providence 
that  woman,  who  is  the  mere  dependent  and  ornament  of 
man  in  his  happier  hours,  should  be  his  stay  and  solace  when 
smitten  with  sudden  calamity,  winding  herself  into  the  rug- 
ged recesses  of  his  nature,  tenderly  supporting  the  drooping 
head,  and  binding  up  the  broken  heart.” 

If  the  American  public  had  as  strong  and  clean  cut  a 
conception  of  the  necessity  of  the  stability  of  the  family  as 
it  has  of  the  material  demands  of  the  individual,  the  chief 
evils  of  our  divorce  system  would  soon  disappear.  We  are 
living  in  an  age  in  which  commercial  interests  are  strong 
and  absorbing.  Yet,  beneath  all  the  hustle  and  bustle  of 


50 


business — yea,  at  the  bottom  of  all  the  rationalism,  agnosti- 
cism, and  all  the  other  troublesome  "isms”  of  the  hour — 
there  is  a strong  religious  craving  for  light,  life,  and  truth. 
This  instinctive  religious  craving  should  be  fostered,  nour- 
ished, and  cultivated.  And  it  is  to  be  hoped  that  the  teach- 
ing of  the  Catholic  Church,  and  the  example  of  all  who  are 
docile  and  obedient  to  it,  in  proclaiming  and  insisting  upon 
the  absolute  indissolubility  of  every  marriage,  ratified  and 
consummated  under  the  sacramental  law  of  Christ,  will  con- 
tinue to  have  a salutary  influence  on  the  community  at  large. 
The  instruction  of  other  religious  and  moral  teachers,  defec- 
tive as  it  may  be,  and  the  belief  and  practice  of  the  consid- 
erable number  who  adhere  to  that  measure  of  sound  doc- 
trine which  it  contains,  in  so  far  as  their  influence  prevails, 
are  conservative  of  public  and  private  morality  and  pre- 
servative against  demoralization  in  the  great  body  of  the 
people. 

Besides  the  Church,  and  whatever  else  is  strictly  eccle- 
| siastical  or  formally  religious  in  its  nature,  there  are  many 
potent  agencies  which  can  be  made  auxiliary  in  their  re- 
spective spheres.  Education,  literature,  the  press,  volun- 
tary association — if  regulated  by  Christian  principles — are 
efficacious  means  of  promoting  Christian  morality.  Let 
these  implant  on  the  soil  of  the  American  public  the  good 
seed  of  a more  wholesome  literature,  stronger  virtue,  and 
nobler  types  of  the  matrimonial  union.  Let  our  law-makers 
legislate  in  the  presence  of  the  fact  that  physical  health  and 
strength  of  race,  which  is  assured  by  the  inviolability  of  the 
family  tie,  is  an  indispensable  element  of  national  perpet- 
uity. If  it  must  needs  be  that  divorce  exist  in  our  country, 
let  it  be  regarded  as  a necessary  evil ; and  its  legislation  may 
be  presumed  to  be  what  we  will  it  to  be.  Let  the  pulpit,  the 
bar,  the  school,  the  press — every  active  agent — conspire  to 
create  a healthy  public  sentiment  on  the  question,  tending 
to  suppress  "divorce  agencies,”  to  lessen  the  number  of 
legally  recognized  causes  for  divorce,  and  demanding  the 
hearing  of  divorce  suits  in  open  session  of  the  court.  In 
the  words  of  Judge  George  W.  Wheeler  of  the  superior 
court  of  Connecticut,  "Let  the  public-spirited  citizens  who 


51 


are  pressing  for  a contraction  of  the  causes  for  which  di- 
vorce may  he  procured,  turn  a part  of  their  energies  toward 
the  procurement  of  a thorough  investigation  in  court,  of 
each  action  for  divorce,  by  a competent  official.  Before  such 
an  investigation,  aided  by  the  cross-examination  of  a skilled 
and  honorable  advocate,  the  statistics  would  change  radi- 
cally. Eliminate  the  fraudulent  and  utterly  untenable  and 
unjustifiable  divorce  actions,  and  there  would  be  less  ques- 
tioning of  the  propriety  of  the  causes  of  divorce.”  (June  22, 
1904.)  Let  our  legislators,  and  the  press,  strain  every  effort 
to  promote  the  movement  of  the  American  Bar  Association 
to  secure  some  measure  of  uniformity  of  procedure  in 
divorce  trials.  This  Association  advocates  each  State’s  en- 
acting a law  forbidding  divorce  for  any  cause  arising  prior 
to  the  residence  of  the  complainant  in  the  State,  unless  for 
a ground  adequate  in  the  State  where  the  cause  arose ; or  for 
any  cause  arising  in  the  State  unless  the  petitioner  has  been 
an  actual  resident  of  said  State  for  one  year  with  a bona 
fide  intention  of  making  it  his  or  her  permanent  residence  ; 
or  for  any  cause  arising  out  of  the  State  unless  he  or  she 
has  been  a resident  for  at  least  two  years  before  bringing 
suit.  Such  provisions,  if  adopted  by  all  the  States,  would 
go  far  to  prevent  the  fraudulent  divorces  now  so  easily  ob- 
tained by  persons  migrating  to  the  divorce  granting  State 
for  no  other  purpose  than  that  of  securing  the  decree.  This 
is  the  first,  and  perhaps  the  greatest,  evil  to  be  prevented. 
If  this  measure  of  uniformity  is  procured,  uniformity  in 
other  respects  is  hut  a short  distance  away.  This  would 
ultimately  tend  to  remedy  the  second  element  of  our  divorce 
problem,  namely  “The  Conflict  of  Laws,”  and  would  directly 
and  immediately  affect  the  first  element,  the  increase  of 
divorces. 

It  is  earnestly  desired  that  in  the  near  future  the 
whole  question  of  marriage  and  divorce  in  this  country  will 
he  satisfactorily  settled.  The  task  is  a difficult  one;  the 
road  is  not  all  strewn  with  roses,  and  the  goal  cannot  be 
reached  in  haste.  But  it  is  surely  worth  the  best  thought 
and  effort  of  all  who  desire  the  advancement  of  true  mor- 
ality, and  the  increase  of  happy  homes — where  men  and 


52 


women  may  find  the  highest  companionship,  and  bring  up, 
under  the  best  possible  conditions,  children  who  will  do 
honor  to  themselves,  to  their  parents,  to  their  country,  and 
to  their  Creator.  The  problem  came  into  being  when  the 
matter  was  taken  out  of  the  power  of  the  Church;  it  will 
cease  to  be  when  the  former  condition  of  things  is  restored. 
The  only  thoroughly  satisfactory  remedy  is  the  return  to 
the  Catholic  idea  of  marriage,  and  this  return  alone  can 
remove  the  evil  of  divorce.  “But  Catholic  marriage  is  im- 
practicable, impossible  even,  in  a non-Catholic  society,  as  is 
evident  from  the  fact  that  no  non-Catholic  community  re- 
tains it.  . . Catholic  marriage  cannot  be  re-established 

by  secular  legislation.”  Nor  can  there  be  any  return  to 
Catholic  marriage  without  a return  to  the  bosom  of  the 
Catholic  Church,  for  “Catholic  marriage  is  interwoven  with 
the  whole  Catholic  system,  and  cannot  be  isolated  from  it, 
or  observed  in  its  purity  and  integrity  without  the  Catholic 
faith,  Catholic  training  and  discipline,  or  without  the  gra- 
cious aids  the  Catholic  Church  supplies  to  her  faithful  chil- 
dren, and  to  none  others.”  (Brownson,  “The  Family,  Chris- 
tian and  Pagan.”) 


53 


BIBLIOGRAPHY. 


ALLIES,  T.  W. — “The  Formation  of  Christendom.”  3 ed. 
4 vols.  London,  1897. 

Cf.  vol.  I.  Lecture  V.,  “New  Creation  of  the  Primary 
Relation  Between  Man  and  Woman.” 

BILLUART,  C.  R. — “De  Consensu  ad  Matrimonium  Req.” 
BISHOP,  J.  P. — “Marriage,  Divorce,  and  Separation.”  2 
vols.  Chicago,  1891. 

BROWNSON,  0.  A. — “Brownson’s  Works.”  20  vols.  Detroit, 
1887. 

“The  Family,  Christian  and  Pagan.”  Vol.  XIII.,  p. 
526  sq. 

“The  Woman  Question.”  Vol.  XVIII.,  p.  381  sq. 
“Index  of  Subjects.”  Vol.  XX.,  words : — “Marriage;” 
“Divorce.” 

CAIRD,  MONA. — “The  Morality  of  Marriage,  and  Other 
Essays  on  the  State  and  Destiny  of  Woman.”  Lon- 
don, 1897. 

CARLIER. — “Le  Manage  aux  Etats-Unis.”  Paris,  1860. 
CONVERS,  D. — “Marriage  and  Divorce  in  the  United 
States.”  Phila.,  1889. 

COUDERT,  F.  R.,  Jr. — “Marriage  and  Divorce  Laws  in 
Europe.”  New  York,  1893. 

DeAHOUSTINIS.— “De  Re  Sacramentaria.”  2 Vols.  New 
York,  1878. 

DIKE,  S.  W. — “What  Christianity  Has  Done  for  the  Fam- 
ily.” Auburndale,  1897. 

DIJMAS  (fils). — “Le  Question  du  Divorce.”  Paris,  1884. 
ESMEIN,  A. — “Le  Mariage  en  Droit  Canonique.”  Paris, 
1891. 

FIELDS,  ELIZ.— “Freedom  in  Marriage.”  New  York, 
1902. 

FOLK,  E.  E. — “The  Mormon  Monster,  or  The  Story  of 
Mormonism.”  Chicago,  1900. 


54 


GASPARI. — “Tract.  Canon,  de  Matr.”  2 Yols.  Paris,  1891. 

GIBBONS,  CARD. — “Our  Christian  Heritage.”  Baltimore, 
1889. 

KENT,  J AMES. — “Commentaries.”  13  ed.  4 Yols.  Bos- 
ton, 1884. 

LEO  XIII. — Encyclicals ; “Arcanum,”  Feb.  10,  1880;  “Long- 
inqna,”  Jan.  6,  1895. 

LILLY,  W.  S. — “On  Right  and  Wrong.”  London,  1881. 
Cf.  chap.  IX. 

LINN,  W.  A. — “The  Story  of  the  Mormons.”  New  York, 
1902. 

LITTLE,  W.  J.  C.— “Holy  Matrimony.”  London,  1900. 

LUCKOCK,  H.  M.— “The  History  of  Marriage.”  London, 
1894. 

MALLOCK,  W.  H. — “Studies  of  Contemporary  Supersti- 
tion.” London,  1895. 

MONSABRE. — “Conferences  snr  le  Mariage.”  Paris,  1887. 

MORROW,  P.  A. — “Social  Disease  and  Marriage.”  New 
York,  1904. 

NUTTING,  J.  D. — “The  Private  Doctrines  of  Mormon 
Theology.”  Cleveland,  1900. 

“The  True  Mormon  Doctrine.”  Cleveland,  1901. 

PALMIERI. — “Tractatus  de  Matrimonio  Christiano.” 
Rome,  1880. 

PERRONE. — “De  Matrimonio  Christiano.”  3 Yols.  Leodii, 
. 1861. 

REYNAUD,  P. — “La  Civilisation  Paienne  et  la  Famille.” 
Paris,  1901. 

ROSMINI. — “Des  Lois  Civiles  concernant  le  Mariage  des 
Chretiens.”  (Translated  from  the  Italian  by  L. 
Rupert,  Paris,  1853.) 

SCHOULER,  J.— “On  Husband  and  Wife.”  Boston,  1882. 
“On  Domestic  Relations.”  5 ed.  Boston,  1895. 

SPRAGUE,  H.  H. — “Women  Under  the  Law  of  Massachu- 
setts, their  Rights,  Privileges,  and  Disabilities.”  Bos- 
ton, 1903. 

SNYDER,  W.  L. — “The  Geography  of  Marriage.  A Consid- 
eration of  the  Legal  Complexities  Connected  with 
Marriage  in  the  United  States.”  New  York,  1895. 


55 


STARCKE,  C.  1ST.— “La  Famille  dans  les  Differentes  Soci- 
etes.”  Paris,  1899. 

STIMSON,  F.  J. — “American  Statute  Law.”  2 Vols.  Bos- 
ton, 1886-1892. 

STIMSON,  F.  J.— “Uniform  State  Legislation.”  Phila., 
1895. 

TANQUEREY,  A.— “Synopsis  Theologiae  Dogma ticae.”  3 
Yols.  Baltimore,  1895. 

WILCOX,  D.  F. — “Ethical  Marriage.”  Ann  Arbor,  Mich., 
1900. 

WILCOX,  W.  F.— “The  Divorce  Problem.  A Study  in  Sta- 
tistics.” New  York,  1897. 

WOOLSEY,  T.  D. — “Divorce  and  Divorce  Legislation.”  2 
ed.  rev.  New  X°rk,  1882. 

WEIGHT,  C.  D.— “Marriage  and  Divorce.”  Report  of  the 
U.  S.  Commissioner  of  Labor,  1889.  Cf.  revised 
edition  of  1897. 

YOUNG,  A. — “Catholic  and  Protestant  Countries  Com- 
pared.” New  York,  1895. 

“Book  of  Mormon.”  Orson  Pratt’s  edition  of  1881. 
“Digest  of  Canons.”  Protestant  Episcopal  Church, 

1887. 

“Doctrine  and  Covenant  of  the  Church  of  Jesus 
Christ  of  Latter-Day  Saints.”  Salt  Lake  City,  1886'. 
“Encyclopedia  of  American  and  English  Law.”  art. 
“Marriage ;”  “Divorce.” 

“Sixty-First  Report  of  Births,  Marriages,  and  Deaths 
in  Massachusetts  for  1902.”  Boston,  1903. 
MAGAZINE  ARTICLES  directly  and  indirectly  pertaining 
to  the  subject: — 

THE  ATLANTIC  MONTHLY,  Boston,  Mass.:— 

“The  Marriage  Celebration  in  Europe.”  Feb.,  1888. 
“The  Marriage  Celebration  in  the  Colonies.”  March,, 

1888.  • 

“The  Marriage  Celebration  in  the  United  States.” 
April,  1888. 

“Reform  in  the  Celebration  of  Marriage.”  May,  1888. 
(Four  articles  by  Frank  Gaylord  Cook.) 


56 


THE  CATHOLIC  WORLD,  New  York,  N.  Y. 

“Divorce  Legislation  in  Connecticut.”  Vol.IV.,  p.  101. 
“The  Indissolubility  of  Christian  Marriage.”  No.  I. 
Yol.  V.,  p.  567. 

“The  Indissolubility  of  Christian  Marriage.”  No. 
II.  Yol.  V.,  p.  684. 

“The  Church — The  Champion  of  Marriage.”  Yol. 
XVI.,  p.  585. 

“Divorce  and  Divorce  Laws.”  Yol.  XXV.,  p.  340. 
“Divorce  and  Some  of  its  Results.”  Yol.  XXXI.,  p. 
550. 

“Dr.  Woolsey  on  Divorce.”  A.  F.  Hewitt.  Yol. 
XXXV.,  p.  11. 

“Some  Aspects  of  the  Law  of  Marriage.”  A.  F.  Hew- 
itt. Yol.  XXXVIII.,  p.  721. 

“The  Catholic  Law  of  Marriage.”  A.  F.  Hewitt. 
Yol.  XXXIX.,  p.  145. 

“Divorce.”  L.  C.  B.  Yol.  XLVIII.,  p.  23. 

“The  Divorce  Question.”  G-eo.  M.  Searle.  Vol. 
XLVIII.,  p.  822. 

“Divorce  and  Its  Effects  on  Society.”  Dr.  Geo.  Gig- 
linger.  Yol.  LVIIL,  p.  92. 

THE  CONTEMPORARY  REVIEW:— 

“The  Problem  of  the  Family  in  the  United  States.” 
S.  W.  Dike.  Dec.  1893. 

“The  Limits  of  Divorce.”  C.  P.  Garrison.  Feb.  1894. 
“Marriage  and  Divorce.”  Canon  Knox  Little.  Aug. 
1895. 

“Divorce  in  the  United  States.”  Gertrude  Atherton. 
Sept.  1897. 

THE  FORUM:— 

“National  Divorce  Legislation.”  E.  H.  Bennet.  Yol. 
II.,  p.  429. 

“Marriage  Laws.”  E.  H.  Bennet.  Yol.  III.,  p.  219. 
“To  Marry  or  not  to  Marry.”  J.  H.  Browne.  Yol. 
VI.,  p.  432. 

“Divorce  in  the  United  States.”  E.  J.  Phelps.  Yol. 
VIII.,  p.  349. 


57 


“The  Ethics  of  Marriage.”  W.  S.  Lilly.  Vol.  VIII., 
p.  504. 

“Matrimony  and  the  State.”  M.  J.  Savage.  Vol.  X., 
p.  115. 

“The  Revolt  Against  Marriage.”  E.  L.  Linton.  Vol. 
X.,  p.  585. 

“The  Census  of  Sex,  Marriage  and  Divorce.”  C.  D. 
Wright.  Vol.  XVII.,  p.  484. 

“The  Matrimonial  Market.”  Vol.  XXI.,  p.  747. 
THE  NORTH  AMERICAN  REVIEW:— 

“Divorce:  Is  It  Wrong?”  (several  papers)  Vol. 
CXLIX.,  p.  513. 

“The  Question  of  Divorce.”  (several  papers)  Vol. 
CLXIX.,  p.  641. 

“Women’s  Views  of  Divorce.”  (several  papers)  Vol. 
CL.,  p.  110. 

“Final  Words  on  Divorce.”  (several  papers)  Vol.  CL., 
p.  263. 

“The  Future  of  Marriage.”  John  L.  Heaton.  Vol. 
CLIII.,  p.  126. 

“Divorce  from  a French  Point  of  View.”  A.  Naquet. 
Vol.  CLV.,  p.  721. 

Divorce  Made  Easy.”  Prof.  S.  J.  Brun.  Vol.  CLVII., 

p.  11. 

“Some  Comments  on  Divorce.”  Mrs.  Kate  G.  Wells. 
Vol.  CLXXIII.,  p.  508. 

THE  POLITICAL  SCIENCE  QUARTERLY:— 

“Statistics  of  Marriage  and  Divorce.”  S.  W.  Dike, 
Vol.  IV. 

“A  Study  in  Vital  Statistics.”  W.  F.  Wilcox.  Vol. 
VIII. 

HARPER’S  MONTHLY  MAGAZINE:— 

“Economic  Aspects  of  Mormonism.”  Richard  T.  Ely. 
April,  1903. 


58 


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